Morisky v. MMAS Research LLC

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DONALD E. MORISKY, CASE NO. 2:21-CV-1301-RSM-DWC 11 Plaintiff, v. ORDER DENYING MOTION TO 12 STAY AND RE-NOTING MOTION MMAS RESEARCH LLC, et al., REQUESTING LEAVE FOR 13 DISCOVERY Defendants. 14

15 Currently before the Court is Defendants’ Motion for Stay of the Orders. Dkt. 198. The 16 Court ordered Defendants to pay the sum of $35,025.92 on or before December 1, 2023. Dkts. 17 141, 195. In addition, the Court ordered Defendants’ counsel to pay $1,320.00 to Plaintiff’s 18 counsel on or before December 1, 2023. Dkt. 195. Defendants request Defendants’ obligation to 19 pay and Defendants’ counsels’ obligation to pay be stayed “until after this matter is fully heard 20 and resolved.” Dkt. 198. After consideration of the relevant record, the Motion (Dkt. 198) is 21 denied. 22 23 24 1 I. Background 2 The factual background in this case has been detailed in previous orders. See e.g., Dkts. 3 47, 48, 84. The Court, therefore, sets forth only the procedural background relevant to the instant 4 motion. The Court granted-in-part and denied-in-part Plaintiff’s Second Motion for Sanctions

5 (Dkt. 156), directing Defendants’ counsel to pay $1,320.00 to Plaintiff’s counsel on or before 6 December 1, 2023. Dkt. 195. The Court also granted Plaintiff’s Third Motion for Sanctions (Dkt. 7 158), directing Defendants to pay $35,025.92 ($33,525.92 plus $1,500.00 as a sanction for 8 failing to pay) on or before December 1, 2023. Id. Defendants seek relief from payment of both 9 obligations based on the “sheer inability to pay” and to “allow the parties to focus on going 10 forward with resolution of this matter in trial.” Dkt. 198. Plaintiff filed a response in opposition 11 (Dkt. 202) and Defendants filed a reply and the Declaration of Patricia Ray in support of the 12 reply (Dkts. 207 and 208).1 13 II. Discussion 14 This Court evaluates several factors in considering whether a stay of sanctions is

15 appropriate. Stargaze Mgmt., LLC v. George Smith Partners, Inc., 2015 WL 12656917, at *1 16 (C.D. Cal. Nov. 6, 2015). The factors include, “(1) whether the stay applicant has made a strong 17 showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably 18 injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties 19 interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 20

21 1 In their Reply, Defendants include a Motion to Strike Plaintiff’s Opposition (Dkt. 202) because Plaintiff did not object to the Order Awarding Fees and Costs (Dkt. 195) within 14 days of the entry of that Order. Since the 22 Order included language “The Court notes that nothing in this Order prohibits Defendants from filing a motion seeking relief from the deadline” for payment, Plaintiff asserts the time for objecting to the Order has elapsed and 23 any objections to Defendants’ Motion to Stay should be stricken. As Plaintiff’s Opposition is directed at the merits of whether the Court should provide Defendants relief from the deadlines for payment and was timely filed in 24 response to the Motion to Stay, the Motion to Strike is denied. 1 U.S. 770, 776 (1987). 2 Defendants have failed to demonstrate a stay of the order directing payment of sanctions 3 is appropriate. Defendants argue only that they lack the inability to pay. See Dkt. 198. Where a 4 party seeks to avoid sanctions based on lack of resources, the sanctioned party has the burden to

5 produce probative evidence of their inability to pay the sanctions. Gallagher v. Mullens, 37 Fed. 6 App’x 902, 902 (9th Cir. 2002); Gaskell v. Weir, 10 F.3d 626, 629 (9th Cir. 1993). Neither 7 MMAS Research LLC nor Mr. Trubow have put forth any evidence in the Motion supporting 8 their “sheer inability to pay.” See Dkt. 198. In their Reply, Defendants reference income 9 statements and tax returns produced to Plaintiff in discovery on November 28, 2023. Dkt. 207. 10 This is not evidence that is properly before the Court, nor does that necessarily show Defendants 11 cannot pay the sanction. While Defendants assert they “will have trouble in paying” and their 12 “entire lack of financial means leads to their request,” Defendants have not provided any 13 evidence to support the request to stay payment until after trial in this matter. In addition, 14 Defendants’ counsel have not submitted any evidence to support the stay of their obligation to

15 pay the $1,320.00. 16 For these reasons, Defendants have not met their burden of showing a stay of the Orders 17 directing payment of sanctions is appropriate. 18 III. Remaining Matters 19 Also pending before the Court are Defendants’ Motion Requesting Leave for Discovery 20 (Dkt. 199), noted for December 15, 2023, the parties’ Joint Status Report re-setting pretrial 21 deadlines and the trial date (Dkt. 201), and Plaintiff’s Motion for Stay (Dkt. 206), noted for 22 December 29, 2023. 23

24 1 The Court finds, in the interest of judicial economy, a new scheduling order should not be 2 issued until after Plaintiff’s Motion for Stay (Dkt. 206) is decided. The Motion Requesting Leave 3 for Discovery (Dkt. 199), which is related to reopening the discovery period and the proposed 4 scheduling order, also cannot be decided until after Plaintiff’s Motion for Stay. Accordingly, the

5 Court directs the Clerk’s Office to re-note Defendants’ Motion Requesting Leave for Discovery 6 (Dkt. 199) for December 29, 2023. 7 IV. Conclusion 8 In conclusion, Defendants’ Motion for Stay of the Orders (Dkt. 198) is denied. 9 Defendants are ordered to pay the sum of $35,025.92 on or before January 12, 2024 and 10 Defendants’ counsel to pay $1,320.00 to Plaintiff’s counsel on or before January 12, 2024. 11 Further, the Clerk’s Office is directed to re-note Defendants’ Motion Requesting Leave for 12 Discovery (Dkt. 199) for December 29, 2023. 13 Dated this 21st day of December, 2023. 14 A 15 David W. Christel Chief United States Magistrate Judge 16 17 18 19 20 21 22 23 24