Frank Underhill, Jr. v. For the Earth Corporation, an Arizona corporation; Nelson Grist, an individual, et al.

D. Nevada

Frank Underhill, Jr. v. For the Earth Corporation, an Arizona corporation; Nelson Grist, an individual, et al.

District Court, D. Nevada·Decided January 26, 2026·No. 2:21-cv-01287·Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Frank Underhill, Jr., Case No. 2:21-cv-01287-CDS-DJA 6 Plaintiff, 7 Report and Recommendation v. 8 For the Earth Corporation, an Arizona 9 corporation; Nelson Grist, an individual, et al.,

10 Defendants.

11 12 On February 21, 2025, the Court granted Nelson Grist and For the Earth Corporation’s 13 (“FTEC”) counsel’s motion to withdraw. (ECF No. 76). In that order, the Court gave FTEC until 14 March 24, 2025, to file a status report regarding its efforts to retain counsel. (Id.). It advised that 15 “[f]ailure to comply with this order may result in sanctions.” (Id.). FTEC did not comply with 16 the order and so, the Court entered an order to show cause requiring FTEC to explain why the 17 Court should not recommend sanctions. (ECF No. 80). The Court gave FTEC until May 30, 18 2025, to respond to the order. (Id.). To date, FTEC has not responded to either order. 19 The broad, underlying purpose of the Federal Rules of Civil Procedure is to “secure the 20 just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. 21 The rules provide several mechanisms that allow courts to accomplish this goal through the use of 22 sanctions against parties that fail to comply with court orders or that unnecessarily multiply 23 proceedings. Dollar v. Las Vegas Metropolitan Police Dep’t, No. 2:15-cv-00712-APG-CWH, 24 2017 WL 3666301, at *1-2 (D. Nev. Aug. 24, 2017). Federal Rule of Civil Procedure 16 is the 25 central pretrial rule that authorizes courts to manage their cases “so that disposition is expedited, 26 wasteful pretrial activities are discouraged, the quality of the trial is improved, and settlement is 27 facilitated.” In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006). 1 orders as are just for a party’s failure to obey a scheduling or pretrial order, including dismissal.” 2 Id. Rule 16(f) provides in relevant part that “[o]n motion or on its own, the court may issue any 3 just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney ... 4 fails to appear at a scheduling or other pretrial conference ... or fails to obey a scheduling order or 5 other pretrial order.” Fed. R. Civ. P. 16(f)(1). 6 Potential sanctions under Rule 37(b)(2)(A) include rendering a default judgment against 7 the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(vi). In determining sanctions under Rule 8 37(b)(2), a court may consider the following five factors: (1) the public’s interest in expeditious 9 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice; (4) the 10 public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 11 sanctions. In re Phenylpropanolamine, 460 F.3d at 1226. It is within the court’s discretion 12 whether to impose dismissal sanctions. Id. 13 Here, the first two factors, the public’s interest in expeditiously resolving this litigation 14 and the Court’s interest in managing its docket, weigh in favor of rendering default. FTEC has 15 disengaged from participation in this case, as demonstrated by its failure to comply with the 16 Court’s orders requiring it to update the Court regarding its retention of counsel and its failure to 17 respond to the Court’s order to show cause. FTEC’s repeated failures to comply with the Court’s 18 orders are inconsistent with Rule 1’s directive to “secure a just, speedy, and inexpensive” 19 determination of this action. FTEC’s failures to comply with the Court’s orders also have 20 interfered with the Court’s management of its docket. 21 The third factor, risk of prejudice, weighs in favor of default. While FTEC would face 22 prejudice by having default entered against it, Plaintiff also faces prejudice by FTEC’s failure to 23 engage in this action. FTEC, as a corporation, must appear in court through counsel. See 24 Reading Intern., Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016). Its failure to 25 do so has deprived the parties of the ability to resolve their claims. 26 The fourth factor, the public policy in favor of deciding cases on their merits, weighs 27 slightly in favor of not entering default. However, if FTEC refuses to follow Court orders and 1 sanctions less drastic than default are unavailable because FTEC has failed to comply with 2 multiple Court orders. Given FTEC’s failure to comply with past orders, the Court has no reason 3 to believe it would comply with future orders. FTEC was also warned that failure to comply with 4 the Court’s order to file a status report could result in a recommendation that sanctions be entered 5 against it. 6 7 IT IS THEREFORE RECOMMENDED that default be entered against For the Earth 8 Corporation. The Clerk of Court is kindly directed to send a copy of this report and 9 recommendation to For the Earth Corporation. 10 11 NOTICE 12 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 13 in writing and filed with the Clerk of the Court within fourteen (14) days after service of this 14 Notice. The Supreme Court has held that the courts of appeal may determine that an appeal has 15 been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 16 U.S. 140, 142 (1985) reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that 17 (1)failure to file objections within the specified time and (2) failure to properly address and brief 18 the objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 19 issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); 20 Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 21 22 DATED: January 26, 2026 23 DANIEL J. ALBREGTS 24 UNITED STATES MAGISTRATE JUDGE 25 26 27

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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Frank Underhill, Jr., Case No. 2:21-cv-01287-CDS-DJA 6 Plaintiff, 7 Report and Recommendation v. 8 For the Earth Corporation, an Arizona 9 corporation; Nelson Grist, an individual, et al.,

10 Defendants.

11 12 On February 21, 2025, the Court granted Nelson Grist and For the Earth Corporation’s 13 (“FTEC”) counsel’s motion to withdraw. (ECF No. 76). In that order, the Court gave FTEC until 14 March 24, 2025, to file a status report regarding its efforts to retain counsel. (Id.). It advised that 15 “[f]ailure to comply with this order may result in sanctions.” (Id.). FTEC did not comply with 16 the order and so, the Court entered an order to show cause requiring FTEC to explain why the 17 Court should not recommend sanctions. (ECF No. 80). The Court gave FTEC until May 30, 18 2025, to respond to the order. (Id.). To date, FTEC has not responded to either order. 19 The broad, underlying purpose of the Federal Rules of Civil Procedure is to “secure the 20 just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. 21 The rules provide several mechanisms that allow courts to accomplish this goal through the use of 22 sanctions against parties that fail to comply with court orders or that unnecessarily multiply 23 proceedings. Dollar v. Las Vegas Metropolitan Police Dep’t, No. 2:15-cv-00712-APG-CWH, 24 2017 WL 3666301, at *1-2 (D. Nev. Aug. 24, 2017). Federal Rule of Civil Procedure 16 is the 25 central pretrial rule that authorizes courts to manage their cases “so that disposition is expedited, 26 wasteful pretrial activities are discouraged, the quality of the trial is improved, and settlement is 27 facilitated.” In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006). 1 orders as are just for a party’s failure to obey a scheduling or pretrial order, including dismissal.” 2 Id. Rule 16(f) provides in relevant part that “[o]n motion or on its own, the court may issue any 3 just orders, including those authorized by Rule 37(b)(2)(A)(ii)–(vii), if a party or its attorney ... 4 fails to appear at a scheduling or other pretrial conference ... or fails to obey a scheduling order or 5 other pretrial order.” Fed. R. Civ. P. 16(f)(1). 6 Potential sanctions under Rule 37(b)(2)(A) include rendering a default judgment against 7 the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(vi). In determining sanctions under Rule 8 37(b)(2), a court may consider the following five factors: (1) the public’s interest in expeditious 9 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice; (4) the 10 public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 11 sanctions. In re Phenylpropanolamine, 460 F.3d at 1226. It is within the court’s discretion 12 whether to impose dismissal sanctions. Id. 13 Here, the first two factors, the public’s interest in expeditiously resolving this litigation 14 and the Court’s interest in managing its docket, weigh in favor of rendering default. FTEC has 15 disengaged from participation in this case, as demonstrated by its failure to comply with the 16 Court’s orders requiring it to update the Court regarding its retention of counsel and its failure to 17 respond to the Court’s order to show cause. FTEC’s repeated failures to comply with the Court’s 18 orders are inconsistent with Rule 1’s directive to “secure a just, speedy, and inexpensive” 19 determination of this action. FTEC’s failures to comply with the Court’s orders also have 20 interfered with the Court’s management of its docket. 21 The third factor, risk of prejudice, weighs in favor of default. While FTEC would face 22 prejudice by having default entered against it, Plaintiff also faces prejudice by FTEC’s failure to 23 engage in this action. FTEC, as a corporation, must appear in court through counsel. See 24 Reading Intern., Inc. v. Malulani Group, Ltd., 814 F.3d 1046, 1053 (9th Cir. 2016). Its failure to 25 do so has deprived the parties of the ability to resolve their claims. 26 The fourth factor, the public policy in favor of deciding cases on their merits, weighs 27 slightly in favor of not entering default. However, if FTEC refuses to follow Court orders and 1 sanctions less drastic than default are unavailable because FTEC has failed to comply with 2 multiple Court orders. Given FTEC’s failure to comply with past orders, the Court has no reason 3 to believe it would comply with future orders. FTEC was also warned that failure to comply with 4 the Court’s order to file a status report could result in a recommendation that sanctions be entered 5 against it. 6 7 IT IS THEREFORE RECOMMENDED that default be entered against For the Earth 8 Corporation. The Clerk of Court is kindly directed to send a copy of this report and 9 recommendation to For the Earth Corporation. 10 11 NOTICE 12 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 13 in writing and filed with the Clerk of the Court within fourteen (14) days after service of this 14 Notice. The Supreme Court has held that the courts of appeal may determine that an appeal has 15 been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 16 U.S. 140, 142 (1985) reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that 17 (1)failure to file objections within the specified time and (2) failure to properly address and brief 18 the objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 19 issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); 20 Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 21 22 DATED: January 26, 2026 23 DANIEL J. ALBREGTS 24 UNITED STATES MAGISTRATE JUDGE 25 26 27

Frank Underhill, Jr. v. For the Earth Corporation, an Arizona corporation; Nelson Grist, an individual, et al., (D. Nev. 2026).

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Frank Underhill, Jr. v. For the Earth Corporation, an Arizona corporation; Nelson Grist, an individual, et al. (Frank Underhill, Jr. v. For the Earth Corporation, an Arizona corporation; Nelson Grist, an individual, et al.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

In Re Phenylpropanolamine (Ppa) Products Liability Litigation, Shantell Allen, on Behalf of Allen, Vera v. Bayer Corporation, Leon Anderson, Jr. v. Bayer Corporation, Leslie Ackel v. Bayer Corporation, Bridgett Arrington v. Bayer Corporation, Calvin McGriggs v. Delaco Company, Betty Clinton v. Delaco Company, Donna Sasseen v. Ide Interstate Inc., Elizabeth Page v. Bayer Corporation, Marie Riley v. Wyeth, Obo Itself and Its Unincorporated Division, Wyeth Consumer Healthcare, Fka Whitehall-Robins Healthcare Formerly Known as American Home Products Corporation, and Keva K. Alford, on Behalf of All Wrongful Death Beneficiaries of Henry Dexter, and Eddie Bullock v. Wyeth, Obo Itself and Its Unincorporated Division, Wyeth Consumer Healthcare, Fka Whitehall-Robins Healthcare Formerly Known as American Home Products Corporation, and Novartis Pharmaceuticals Corporation, Bobby Holmes v. Bayer Corporation, Melody McDaniel v. Wal-Mart Stores, Inc., Samantha Samuels v. Bayer Corporation

460 F.3d 1217 (Ninth Circuit, 2006)

Reading International, Inc. v. the Malulani Group, Limited

814 F.3d 1046 (Ninth Circuit, 2016)

Thomas v. Arn

474 U.S. 1111 (Supreme Court, 1986)

Opinion

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