Luv n' care Ltd v. Laurain

Opinion

3 ***

4 LUV N’ CARE, LTD., Case No.: 2:18-cv-02224-JAD-EJY

5 Plaintiff, ORDER 6 v.

7 LINDSEY LAURAIN, et al.,

8 Defendants.

9 10 Before the Court is Plaintiff Luv N’ Care, Ltd.’s (“LNC”) Motion for Attorney’s Fees (ECF 11 No. 12), and Plaintiff’s Motion to Hold Blue Basin Medical, LLC (“Blue Basin”) and Bradley 12 Laurain in Contempt (ECF No. 13). The Court has considered Plaintiff’s Motions, Blue Basin’s 13 Response to Plaintiff’s Memorandum of Attorney’s Fees and Costs (ECF No. 17), Blue Basin and 14 Bradley Laurain’s Response to Plaintiff’s Motion for Contempt (ECF No. 18), and Plaintiff’s 15 Replies (ECF Nos. 19, 22). The Court finds as follows. 16 Background 17 On July 9, 2018, LNC issued a subpoena to interested party Blue Basin out of the United 18 States District Court for the Western District of Louisiana in the matter pending as Luv N’ Care, 19 LTD. v. Lindsey Laurain, Eazy-PZ, LLC, No. 3:16-cv-00777-TAD-JPM. Blue Basin failed to answer 20 the Subpoena or otherwise respond. ECF No. 1 at 5:8-11; ECF No. 1-2, ¶ 7; ECF No. 1-6, ¶ 11; 21 ECF No. 13 at 3:9-10. On October 16, 2018, LNC sent a meet and confer letter to Blue Basin’s 22 registered agent Incorp. Services, Inc. (“Incorp.”), and Mr. William Delaney (one of Blue Basin’s 23 three managing members) seeking to informally resolve the matter. ECF No. 19 at 2:20-22. 24 Although Incorp. signed the return receipt for the meet and confer letter, Blue Basin did not respond.1 25 ECF No. 19 at 2:22-24. 26 27 1 On November 19, 2018, LNC filed a Motion to Compel Blue Basin to produce documents 2 responsive to its subpoena in this Court. ECF No. 1. On December 19, 2018, the Court granted 3 LNC’s Motion, finding Blue Basin in contempt of LNC’s subpoena, ordering Blue Basin to “produce 4 all responsive documents . . . no later than December 28, 2018,” and awarding LNC attorney’s fees 5 and costs arising from LNC’s Motion to Compel. ECF No. 11 at 2:11-15. Despite this Court’s 6 Order, Blue Basin did not produce any documents. 7 LNC now alleges Mr. Laurain caused Blue Basin to withhold responsive documents when 8 the Court entered its Order granting LNC’s Motion to Compel. ECF No. 13 at 3:24-5:6. LNC 9 believes Mr. Laurain possesses an ulterior motive to withhold documents because he is married to 10 Lindsey Laurain, the founder and sole owner of Eazy-PZ, LLC (“EZPZ”), which is the Defendant 11 in the underlying Louisiana action. ECF No. 1 at 2:21-4. 12 LNC’s attorneys sent a copy of the Court’s December 19, 2018 Order to EZPZ’s in-house 13 counsel, Zac Garthe (“Garthe”), on the day it was docketed because LNC mistakenly believed Garthe 14 was acting as Blue Basin’s counsel. ECF No. 12-1, ¶¶ 33-38; ECF No. 13 at 3:26-28; ECF No. 17- 15 4, ¶ 3. Garthe responded within an hour of receipt stating, in part:

16 Earlier this week, Brad found a box of hard-copy documents, some of which he said may relate to Blue Basin. If so, I am not sure if they are responsive to the 17 subpoena. Brad also told me neither he nor his former business associate retained any electronic records at all. We were planning to meet to review the documents 18 this week, but then his father passed away. Brad is currently in Michigan with his family. I will connect with him after the Holidays to find out if that box has any 19 responsive materials in it. If so, we will of course produce. 20 ECF No. 12-5 (“Garthe email”). When Blue Basin and Mr. Laurain did not produce responsive 21 documents by the Court’s December 28, 2018 deadline, the instant motions and related filings 22 followed. 23 Discussion 24 Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 45(g) permits a court to hold a nonparty 25 in contempt who, having been served, fails without adequate excuse to obey the subpoena or an order 26 related to it. Once the moving party demonstrates by clear and convincing evidence that the 27 contemnor has violated a clear and specific court order, the burden shifts to the contemnor to 1 compliance was not possible. Bademyan v. Receivable Mgm’t Services Corp., No 2:11-cv-00154- 2 GMN-NJK, 2009 WL 605789, *2 (D. Nev. March 9, 2009). The “clear and convincing” standard is 3 more demanding than the preponderance of the evidence standard generally applicable in civil cases. 4 Battaglia v. United States, 653 F.2d 419, 422 (9th Cir. 1981); United States v. Powers, 629 F.2d 619, 5 626 n.6 (9th Cir. 1980). To assess the extent to which the contemnor has taken “every reasonable 6 step” to comply with the court order, the court may consider (1) a history of noncompliance, and (2) 7 a failure to comply despite the pendency of a contempt motion. Bademyan, 2009 WL 605789 at *2 8 (citations omitted). 9 As a threshold matter, the Court finds Magistrate Judge George W. Foley, Jr.’s December 10 19, 2018 Order was clear and specific: “Blue Basin shall produce all responsive documents, 11 requested by the topics set forth in the Subpoena no later than December 28, 2018.” ECF No. 11 at 12 2:10-12. Further, as explained below, the Court also finds LNC has demonstrated by clear and 13 convincing evidence that Blue Basin and Mr. Laurain violated the abovementioned Order. The 14 Court further finds Blue Basin and Mr. Laurain failed to take any reasonable steps to comply with 15 the Order considering the interested parties’ history of noncompliance despite having previously 16 been held in contempt. 17 LNC argues Blue Basin should be held in contempt for failing to comply with this Court’s 18 order to produce responsive documents to its subpoena. ECF No. 13 at 5:11-13. LNC also argues 19 that Mr. Laurain, Blue Basin’s managing member, should be held in contempt, because he told 20 Garthe that he possessed potentially responsive documents, but failed to review and produce them 21 by the deadline. ECF No. 1-4, ¶ 7; ECF No. 12-5; ECF No. 13 at 5:6-7; ECF No. 22 at 8, ¶ 12-14. 22 “Because Mr. Laurain controls Blue Basin, and Blue Basin appears to be insolvent,” LNC asks the 23 Court to hold Mr. Laurain jointly and severally liable with Blue Basin for all fees and costs awarded 24 in connection with enforcing the subpoena, order Blue Basin and Mr. Laurain to produce the 25 responsive documents immediately without any further delay, and award LNC attorney’s fees and 26 costs incurred in connection with this motion. ECF No. 13 at 5:14-16. 27 Blue Basin and Mr. Laurain respond to LNC’s Motion by saying they are not in contempt 1 No. 18 at 4:10-6:17. Specifically, Blue Basin states it had notice of this Court’s Order for the first 2 time on January 4, 2019, when a copy of LNC’s Memorandum of Fees and Costs was served on 3 Incorp. ECF No. 18 at 4:19-21. Mr. Laurain states he was never served with a copy of the Order at 4 all. ECF No. 18 at 4:22. On the other hand, LNC argues both Blue Basin and Mr. Laurain first 5 received notice of this Court’s Order from LNC’s Motion to Compel, which was “undisputedly 6 served at Blue Basin’s registered agent [Incorp.] on November 20, 2018.” ECF No. 22 at 3:27-4:1. 7 Further, LNC argues that Blue Basin and Mr. Laurain received actual notice of the Court’s Order on 8 December 20, 2018, the day the Order was electronically docketed. ECF No. 13 at 6:16-17. 9 Both parties concede EZPZ’s in-house counsel contacted Mr. Laurain immediately upon 10 receiving the Garthe email from LNC’s counsel. ECF No. 18 at 5:22-24; ECF No. 22 at 5:9-10. 11 However, the parties dispute whether Garthe discussed this Court’s Order with Mr. Laurain. ECF 12 No. 18 at 5:7-6:4; ECF No. 22 at 5:7-24. Blue Basin and Mr. Laurain argue Mr. Garthe’s awareness 13 of the Order “cannot be imputed to Mr. Laurain, or by extension, Blue Basin,” because Garthe was 14 acting as EZPZ’s in-house counsel. ECF No. 18 at 6:16-17. In support, Blue Basin and Mr. Laurain 15 point to LNC’s service of the underlying subpoena, meet and confer letters, and Motion to Compel 16 on Incorp. as evidence of Plaintiff’s “bad faith” management of service and notice. ECF No. 18 at 17 14:1-17. However, and “[s]till further, in order to effect service on Mr. Laurain personally of this 18 Motion, LNC sent a process server to his home in Colorado.” ECF No. 18 at 14:5-7. 19 Blue Basin and Mr. Laurain’s lack of notice argument is not compelling. The interested 20 parties contradict themselves in their filings with the Court. On page 13, lines 14 through 17, they 21 argue “Mr. Laurain . . . could have easily been reached through Mr. Garthe or by just sending the 22 letter to Mr. Laurain’s personal address . . . .” ECF No. 18 at 13:14-17. Elsewhere, Blue Basin and 23 Mr. Laurain argue that if “LNC genuinely believed Garthe was acting as Blue Basin’s counsel, then 24 [LNC] should have served communications, such as the meet and confer letter and relevant motions, 25 on Blue Basin directly via its registered agent Incorp.” ECF No. 17 at 4:25-5:1. 26 Next, Mr. Laurain argues he should not personally be held in contempt for Blue Basin’s 27 failure to produce responsive documents. ECF No. 17 at 2:20-21. Mr. Laurain, distinguishing 1 same as the company. ECF No. 18 at 9:20-21. Mr. Laurain states that Blue Basin has been out of 2 business since mid-to-late 2014,2 and that the Nevada Secretary of State revoked the company’s 3 charter for non-filing of its annual list and non-payment of fees in or about 2015.3 Mr. Laurain 4 contends he “had no involvement with Blue Basin after [he] left,” and has been unable to contact the 5 other two founding members of Blue Basin following his departure. ECF No. 17-1, ¶¶ 6-8. In 6 conclusion, Mr. Laurain accuses LNC of engaging in duplicative and opportunistic discovery, having 7 separately deposed him on May 3, 2018, and served him with a subpoena on August 29, 2018. ECF 8 No. 18 at 3:6-14. 9 Blue Basin’s revoked status does not change the Court’s findings today. When Nevada 10 revokes a limited-liability company’s (“LLC”) charter, the LLC’s “right to transact business is 11 forfeited.” NRS 86.274(2). Notwithstanding, the right to transact business that is forfeited on charter 12 revocation does not normally include a domestic LLC’s capacity to be sued and be sued. AA Primo 13 Builders, LLC v. Washington, 126 Nev. 578, 585 (Nev. 2010); see also In re Krause, 546 F.3d 1070 14 (9th Cir. 2008) (certifying to the Nevada Supreme Court the parallel question of whether a domestic 15 corporation whose charter has been revoked under NRS 78.175 may prosecute a lawsuit either (a) 16 in its own corporate name or (b) through its directors). Upon revocation, an LLC’s “property and 17 assets . . . must be held in trust by the managers . . . and the same proceedings may be had with 18 respect to its property and assets as apply to the dissolution of a limited-liability company pursuant 19 to NRS 86.505 and 86.52.” NRS 86.274. In relevant part, a dissolved company continues as a 20 company for the purposes of “defending suits, actions, proceedings and claims of any kind or nature 21 by or against it,” collecting and discharging its obligations, and disposing and conveying its property, 22 but not for the purpose of continuing the business for which it was established. NRS 86.505. 23 The Court notes Blue Basin and Mr. Laurain argue in their Objection to and Motion to 24 Reconsider Order Granting Plaintiff’s Motion to Compel (ECF No. 21) that LNC’s subpoena was 25 filed more than three years after Blue Basin’s status was revoked by Nevada’s Secretary of State 26 (ECF No. 1-4), and therefore, is untimely. Blue Basin cites to NRS 86.505, bolding and underlining

27 2 See Decl. of Bradley Laurain. ECF No. 17, ¶ 6. 1 the statutory language, while leaving out the operative words “in the exercise of reasonable 2 diligence.” ECF No. 21 at 6:21-7:6. Further, Blue Basin admits the subpoena was issued July 9, 3 2018, and there is no dispute that it was served on July 12, 2018. ECF No. 1-4 at 1:20, 27; 3:14-15. 4 Thus, this argument is meritless. 5 Nevada law makes clear that Mr. Laurain, as one of three managers of Blue Basin, the 6 defaulting company, was responsible for holding in trust all of its property and assets, including 7 potentially responsive documents to a subpoena. There is no question that Blue Basin continues as 8 a company, as it is now defending itself from LNC’s Motions for Contempt and Attorney’s Fees. 9 By Mr. Laurain’s own admission, Blue Basin was ostensibly formed for medical products 10 distribution and not for litigation purposes. ECF No. 17-1, ¶¶ 2. Even assuming the federally issued 11 subpoena is subject to NRS 86.505, the subpoena was issued and served within three years of Blue 12 Basin’s de facto dissolution, and therefore, it was timely. Accordingly, Blue Basin, notwithstanding 13 its revoked status, is liable for its refusal to comply with LNC’s subpoena and this Court’s 14 subsequent Order. 15 “[T]o be held liable in contempt, it is necessary that a nonparty respondent must either abet 16 the defendant [in violating the court’s order] or be legally identified with him.” NLRB v. Sequoia 17 Dist. Council of Carpenters, 568 F.2d 628, 633 (9th Cir. 1977) (quotation omitted). A nonparty 18 corporate officer can be held in contempt if the moving party demonstrates the officer had notice of 19 the order to the defendant corporation. 1st Tech., LLC v. Rational Enter. Ltda, No. 2:06-cv-01110- 20 RLH-GWF, 2008 WL 4571057, at *8 (D. Nev. Jul 29, 2008). Put another way, an order to a 21 corporation or another entity4 binds those who are legally responsible for the conduct of its affairs. 22 United States v. Laurins, 857 F.2d 529, 535 (9th Cir. 1988) (citations omitted). The Supreme Court 23 has held:

24 [A] command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the 25 corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation 26 itself, are guilty of disobedience, and may be punished for contempt.

27 United States v. Wilson, 221 U.S. 361, 376 (1911). 1 In Laurins, the Ninth Circuit affirmed a managing director’s conviction of obstruction of 2 justice and aiding, abetting, and causing contempt of court, in connection with an Internal Revenue 3 Service (“IRS”) investigation of Gold Depository and Loan Company, Inc. (“GDL”). 857 F.2d at 4 533. The IRS initially sent a letter to GDL informing it of the investigation and requesting certain 5 documents. Id. Attorney Bart Lee, whom Laurins had hired to represent GDL and himself, requested 6 more time to respond to the letter but ultimately failed to do so. Id. Thereafter, an IRS summons 7 was served on GDL, requesting production for inspection and copying records related to the 8 investment scheme. Id. Lee informed the IRS that GDL was no longer doing business in San 9 Francisco and that its only office was in Maryland, and took the position that the summons was not 10 properly served. Id. GDL produced no documents in response, and therefore, the district court 11 issued an order to enforce the summons. Id. at 533-34. Immediately prior to the order, Laurins 12 ordered employees to box company records, “removed the boxes from the office[,] and on several 13 subsequent occasions produced copies of documents from the boxed records for at least one 14 employee.” Id. After GDL’s president and designated agent produced no records, the district court 15 entered an order of contempt against GDL for willfully failing to comply with the summons. Id. 16 GDL still did not comply. Id. at 534. Following the execution of a search warrant on Laurins’ home, 17 the district court charged and convicted him with obstruction of justice and aiding, abetting, and 18 causing contempt of court. Id. On appeal, Laurins argued he had “dissociated himself from GDL 19 by the time the summons issued, and because he was neither GDL’s agent nor its representative . . . 20 he had no obligation to respond to the summons and cannot be held in contempt . . . .” Id. at 535. 21 The Ninth Circuit rejected this argument, finding Laurins could properly be found in contempt for 22 aiding and abetting GDL because there was ample evidence demonstrating he exercised at least de 23 facto control over the company after the summons issued. Id. at 535-36. 24 The Court finds the facts of Laurins are sufficiently analogous to the present case to be 25 instructive. Mr. Laurain exercised de facto control over his company throughout these proceedings: 26 he is one of three managing members authorized to act on behalf of Blue Basin; he is the only officer 27 who has acted on behalf of Blue Basin in connection with the subpoena; and, he has taken up the 1 task of locating documents potentially responsive to the subpoena. In fact, Mr. Laurain phoned 2 Attorney Garthe to discuss the box of potentially responsive Blue Basin documents and planned to 3 review the same. 4 Once Blue Basin, a nonparty, was served with a subpoena, it could not delegate its obligation 5 to respond to a third party, especially when Blue Basin is the entity that is in control of any company 6 documents sought. Corrales v. Castillo, No. 2:07-cv-00141-LRH-LRL, 2008 WL 4186233, at *1 7 (D. Nev. Sept. 3, 2008) (providing a nonparty may not avoid discovery obligations by charging them 8 to his attorney, particularly when the nonparty has control over the businesses which apparently 9 retain many of the subpoenaed documents). Despite clear evidence to the contrary, Blue Basin 10 maintains that it had no obligation to respond to LNC’s Motion to Compel because service was not 11 perfected, echoing GDL’s unsuccessful argument that it had no obligation to respond to the IRS 12 summons because of improper service. This Court finds the Ninth Circuit’s analysis instructive on 13 this point: “it is Laurins’ failure to obey the court order, not the summons itself, that is at issue in his 14 conviction for contempt. A court order binds parties and those in active concert with parties who 15 have actual knowledge of the order.” Laurins, 857 F.2d at 535. As established above, the Court 16 ordered Blue Basin, and therefore bound, Mr. Laurain to comply with the Court’s order as he is 17 legally responsible for the conduct of Blue Basin’s affairs. Accordingly, the Court finds Mr. Laurain, 18 acting as Blue Basin’s managing member, did not take any reasonable steps to comply with this 19 Court’s Order, and therefore, should be held jointly and severally liable with Blue Basin for contempt 20 on this basis alone. 21 Blue Basin and Mr. Laurain finally argue that they are not in contempt of the Court’s Order, 22 because neither is in possession of responsive documents. It is undisputed Mr. Laurain looked for 23 and found potentially responsive Blue Basin documents before the Court issued its Order, but did 24 not turn them over for review or seek a deadline extension. ECF No. 12 at 2, n.1; ECF No. 12-5; 25 ECF No. 13 at 2:8-10; ECF No. 18 at 8:1-8; ECF No. 22 at 6:8-23. Garthe planned to meet Mr. 26 Laurain during the week of December 17, 2018 to review these materials for responsiveness to his 27 personal subpoena, but this meeting did not occur because Mr. Laurain’s father passed away. ECF 1 related to the lawsuit between LNC and [his] wife’s company, Eazy-PC, LLC. [Mr. Laurain does] 2 not believe [Blue Basin] ever had any documents related to the lawsuit.” ECF No. 17-1, ¶ 9. Blue 3 Basin and Mr. Laurain reaffirm this position in their response to Plaintiff’s Motion for Contempt 4 when they state: “[t]here is literally nothing more Blue Basin or Mr. Laurain could do to comply 5 with either the Subpoena or the Order . . . having produced all documents responsive to the Subpoena 6 (none) by December 28, 2018.” ECF No. 18 at 7:12-15. 7 The Court finds that even if Blue Basin and Mr. Laurain are not in possession of responsive 8 documents, they incurred a duty to review the potentially responsive documents and respond to the 9 Court’s Order in a timely fashion or otherwise notify the subpoenaing party of the need for an 10 extension based on unforeseen circumstances such as a death in the family. A party cannot simply 11 ignore the Court’s Order until Motions for Contempt and for Attorney’s Fees are filed. Contempt is 12 not appropriate if a party’s action appears to be based on a good faith and reasonable interpretation 13 of a court order, but here there is no doubt about the interpretation of the Court’s Order and the good 14 faith explanation—a death in the family—does not explain why Blue Basin and Mr. Laurain did 15 nothing until the contempt motion was filed. In re Dual Deck Video Cassette Recorder Antitrust 16 Litig., 10 F.3d 693, 695 (9th Cir. 1993) (citation omitted). 17 It is true that when a nonparty raises timely objections to a subpoena, the nonparty is not 18 required to produce documents, or even search for them, until the propounding party obtains an order 19 directing compliance. Genx Processors Mauritius Ltd. v. Jackson, No. 2:14-cv-01938-APG-PAL, 20 2018 WL 5777485, at *9 (D. Nev. Nov. 2, 2018) (citing Pennwalt Corp. v. Durand-Wayland, Inc., 21 708 F.2d 492, 494 & n.5 (9th Cir. 1983)). But, here, there was no timely objection. It is undisputed 22 that LNC obtained the Court’s Order directing compliance before the interested parties raised any 23 objections to the subpoenas. The Garthe email, which revealed Mr. Laurain “found a box of 24 [potentially responsive] hard-copy documents, some of which he said may relate to Blue Basin,” 25 would obviously not require the interested parties to turn over documents they knew in fact were 26 unresponsive to the subpoena. Nonetheless, had Blue Basin and Mr. Laurain believed there were no 27 responsive documents prior to the Court’s deadline, they should have timely stated so. There is no 1 question they did not. Accordingly, the Court finds Blue Basin and Mr. Laurain’s delay before 2 conclusively stating there were no responsive documents to produce was unreasonable and in 3 complete disregard of the Court’s December 19, 2018 Order. 4 The Court, having found that LNC has demonstrated, by clear and convincing evidence, that 5 Blue Basin and Mr. Laurain violated this Court’s clear and specific Order to produce all responsive 6 documents requested by the subpoena no later than December 28, 2018, turns to Blue Basin that now 7 has the burden to articulate reasons why compliance was not possible, which this Court finds they 8 have failed to do. Blue Basin and Mr. Laurain have stated that there are no responsive documents 9 to produce and there is no evidence upon which the Court may conclude that this representation is 10 inaccurate. Based on the representations made, and without the requested aid of some mechanism 11 ensuring their veracity, the Court cannot order Blue Basin and Mr. Laurain to produce non-existent 12 responsive documents. Cf. NML Capital Ltd. v. Rep. of Argentina, No. 2:14-cv-00492-RFB-VCF, 13 2014 WL 3898021, at *2 (D. Nev. Aug. 11, 2014). Again, however, Blue Basin and Mr. Laurain’s 14 belated response does not cure their contempt. Accordingly, the Court finds contempt sanctions are 15 appropriate, and shall require Blue Basin and Mr. Laurain to pay LNC’s reasonable attorney’s fees 16 and costs incurred in bringing its Motion to Compel. 17 As discussed extensively above, this Court previously held Blue Basin in contempt pursuant 18 to Fed. R. Civ. P. 45(g). ECF No. 11 at 2:5-9. Consistent with the Court’s instructions in its Order, 19 LNC submitted a Memorandum of Attorney’s fees and Costs (“Memorandum”) and attached 20 exhibits providing and substantiating: (1) a reasonable itemization and description of work 21 performed; (2) the identities of the attorney(s) or staff member(s) performing the work; (3) the 22 customary fee of the attorney(s) or staff member(s) for such work; and (4) the performance, 23 reputation, and ability of the attorney performing the work. ECF No. 11 at 2:14-21. LNC also 24 attached affidavits from its attorneys authenticating the information contained in the memorandum, 25 providing a statement that the bill has been reviewed and edited, and a statement that fees and costs 26 charged are reasonable. ECF No. 11 at 2:21-23; ECF No. 12-1, ¶¶ 4, 11-15; ECF No. 12-2, ¶¶ 4, 27 11-15. LNC has paid all of the invoiced attorney’s fees and costs described in its Memorandum. 1 attorney’s fees and $1,528.54 in costs while preparing its motion to compel. ECF No. 12 at 7:2-6. 2 On the other hand, Blue Basin and Mr. Laurain contend LNC is not entitled to any attorney’s fees 3 whatsoever, and its costs should be reduced to $372.24. ECF No. 17 at 12:2-3. 4 The Memorandum states that “a total of five attorneys from two law firms assisted in 5 preparing LNC’s successful Motion to Compel.” ECF No. 12 at 3:3-4. The Court finds the 6 accounting and itemization of time spent on the motion to compel by LNC’s counsel in the 7 underlying Louisiana action, Liskow & Lewis, is sufficiently detailed for the Court to grant 8 attorney’s fees and costs totaling $7,110. On the other hand, the Court finds the accounting and 9 itemization of time spent on the motion to compel by LNC’s Nevada counsel, Lewis Roca 10 Rothgerber Christie, LLP (“LRRC”) is deficient in this regard. The Court is inclined to grant 11 Plaintiff’s Motion for Attorney’s fees, provided LNC submits an updated Memorandum and Support 12 detailing the work LRRC performed, valued at or around $26,820. Therefore, this Court will deny 13 Plaintiff’s Motion for Attorney’s fees without prejudice and grant Plaintiff leave to amend in 14 accordance with the instructions above. 15 The Court finds unmeritorious Blue Basin and Mr. Laurain’s arguments that they, not LNC, 16 should recover reasonable attorney’s fees and costs pursuant to Fed R. Civ. P. 45, Local Rules of 17 Practice (“LR”) IA 1-3(f)(3), and LR IA 11-8(c). First, Blue Basin and Mr. Laurain argue LNC 18 should be sanctioned (and denied attorney’s fees and costs) for failing to make a good faith effort to 19 meet and confer before filing its Motion to Compel. ECF No. 18 at 13:3-24. This is a curious 20 argument, because it is Blue Basin and Mr. Laurain’s nonresponse that led to noncompliance with 21 the Local Rules. Further, LNC’s counsel “expressly represented to Attorney Garthe that, given Mr. 22 Laurain’s family emergency, LNC would not oppose a motion by Blue Basin for a reasonable 23 extension of the Court’s Deadline.” ECF No. 13 at 4, n. 2; ECF No. 18 at 6, n.9. No such motion 24 was filed by Blue Basin. Second, Blue Basin and Mr. Laurain argue they should be awarded 25 reasonable attorney’s fees and costs because of LNC’s bad faith management of service and notice. 26 ECF No. 18 at 14:1-17. The Court has already determined that this argument lacks merit. Third, 27 Blue Basin and Mr. Laurain waived any arguments they had against this Court’s award of attorney’s 1 Motion to Compel, distinct from its Motion for Attorney’s Fees, sought an award of incurred fees 2 and costs resulting from Blue Basin’s refusal to provide subpoenaed documents. ECF No. 1 at 6-7. 3 Local Rule 7-2(d) provides, “[t]he failure of an opposing party to file points and authorities in 4 response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, 5 constitutes a consent to the granting of the motion.” By failing to respond to LNC’s Motion to 6 Compel, Blue Basin consented to this Court’s grant of attorney’s fees incurred as a result of filing 7 said motion. Finally, and most importantly, the Court finds the interested parties are not entitled to 8 reasonable attorney’s fees and costs because they are in continued contempt of the Court’s Order. 9 Accordingly, 10 IT IS HEREBY ORDERED that Plaintiff’s Motion for Contempt (ECF No. 13) is granted. 11 The Court finds Blue Basin and Mr. Laurain are jointly and severally liable for LNC’s reasonable 12 attorney’s fees and costs. 13 IT IS FURTHER ORDERED that Plaintiff’s Motion for Attorney’s fees (ECF No. 12) is 14 DENIED without prejudice. The Court grants Plaintiff leave to amend to file a revised Memorandum 15 and Support detailing the work LRRC performed, as well as the fees and costs Blue Basin and Mr. 16 Laurain are required to jointly and severally pay, within ten (10) days of this Order. 17 18 DATED THIS 10th day of September, 2019. 19 20 21 ELAYNA J. YOUCHAH 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27