Song v. Drenberg

Opinion

9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11

12 JAMES K. SONG, et al., Case No. 18-CV-06283-LHK

13 Plaintiffs, ORDER DENYING MOTION FOR RELIEF FROM NONDISPOSITIVE 14 v. PRETRIAL ORDER OF MAGISTRATE JUDGE Re: Dkt. No. 102 16 Defendant. 17 18 On October 25, 2019, Plaintiffs filed a Motion for Relief from Nondispositive Pretrial 19 Order of Magistrate Judge challenging Judge DeMarchi’s October 11, 2019 Order Re Sanctions 20 (ECF No. 87). See ECF No. 102. Pursuant to Civil Local Rule 72-2, “no response need be filed 21 and no hearing will be held concerning” a motion for relief from nondispositive pretrial order of 22 magistrate judge “unless otherwise ordered by the assigned District Judge.” Civ. L. R. 72-2. The 23 rule further provides that “[t]he District Judge may deny the motion by written order at any time,” 24 though the District Judge “may not grant it without giving the opposing party an opportunity to 25 respond.” Id. In fact, “[i]f no order denying the motion or setting a briefing schedule is made 26 within 14 days of filing the motion, the motion shall be deemed denied.” Id. Here, the Court 27 1 1 never set a hearing or briefing schedule. The hearing date of February 20, 2020 and 2 accompanying briefing schedule that Plaintiffs recorded on the docket were not authorized by the 3 Court. In other words, the Court could take no action and simply allow the motion to be deemed 4 denied on November 9, 2019. 5 On November 1, 2019, however, Plaintiffs filed a notice of voluntary dismissal pursuant to 6 Federal Rule of Civil Procedure 41(a). The Court therefore decides the instant motion now, in 7 order to speed the resolution of this case. 8 A district court may refer nondispositive pretrial matters to a magistrate judge under 28 9 U.S.C. § 636(b)(1)(A). The district court “may reconsider any pretrial matter under this 10 subparagraph (A) where it has been shown that the magistrate judge’s order is clearly erroneous or 11 contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a). On review of a 12 nondispositive order, “the magistrate’s factual determinations are reviewed for clear error, and the 13 magistrate’s legal conclusions are reviewed to determine whether they are contrary to law.” Perry 14 v. Schwarzenegger, 268 F.R.D. 344, 348 (N.D. Cal. 2010). 15 In the instant motion, Plaintiffs challenges Judge DeMarchi’s order issuing sanctions 16 against Mr. Song and his counsel. ECF No. 87. Specifically, Judge DeMarchi ordered Mr. Song 17 and his counsel “to reimburse Mr. Drenberg for his reasonable attorneys’ fees and costs incurred 18 in preparing the motions to compel” with respect to the document requests at issue. Id. at 2. 19 Federal Rule of Civil Procedure 37(b)(2) authorizes a court to issue sanctions “for not obeying a 20 discovery order.” Fed. R. Civ. P. 37(b)(2)(A). Here, as required by the rule, Judge DeMarchi 21 found that Mr. Song and his counsel had failed to comply with several of Judge DeMarchi’s prior 22 discovery orders, including her May 2, 2019 order (ECF No. 35). Before doing so, Judge 23 DeMarchi gave Plaintiffs an opportunity to show that Plaintiffs’ failure to comply was 24 “substantially justified,” ECF Nos. 48, 51, and concluded that it was not. Id. at 1. Moreover, the 25 rule specifically authorizes such sanctions to take the form of payment of “reasonable expenses, 26 including attorney’s fees, caused by the failure.” Fed. R. Civ. P. 37(b)(2)(C). Plaintiffs, 27 2 1 meanwhile, have not shown that Judge DeMarchi’s order was clearly erroneous or contrary to law. 2 || The Motion for Relief from Nondispositive Pretrial Order of Magistrate Judge is therefore 3 || DENIED. 4 || ITISSO ORDERED. 5 6 || Dated: November 4, 2019 Wl beh. 7 LUCY H. KOH 8 United States District Judge 9 10 11 12

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Z 18 19 20 21 22 23 24 25 26 27 28 Case No. 18-CV-06283-LHK ORDER DENYING MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE