1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 TATYANA LITVINOVA, 10 Case No. 18-cv-01494-RS Plaintiff, 11 v. ORDER DENYING PLAINTIFF'S 12 MOTION FOR RECONSIDERATION THE CITY AND COUNTY OF SAN 13 FRANCISCO, 14 Defendant.
15 This motion arises out of a collective action alleging violations of the Fair Labor Standards 16 Act. Following a deeply troubling course of conduct—which included defiance of court orders— 17 sanctions were imposed against counsel for the Litvinova Plaintiffs under Rule 37. See Dkt. 180. 18 Litvinova counsel1 now moves for reconsideration of that decision, arguing that new information 19 has emerged which explains his dilatory representation. Dkt. 193. Pursuant to Civil Local Rule 7- 20 1(b), the motion is suitable for disposition without oral argument. Because Litvinova counsel has 21 not adduced new facts which call into question the basis of the sanctions order, the motion is 22 denied. 23 I. BACKGROUND 24 More than eight years ago, Tatyana Litvinova filed this collective action against the City 25 and County of San Francsico (collectively, “the City”) on behalf of “dual status” nurses, averring 26
27 1 Technically, the moving party is Litvinova, not Litvinova counsel. However, for ease of 1 that the City deprived the nurses of time-and-a-half pay in violation of the Fair Labor Standards 2 Act. See Dkt. 1. After discovery and motions practice, summary judgment was granted to the City. 3 See Dkt. 103. That decision was reversed by the Ninth Circuit, see Dkt. 124, which kicked off a 4 new round of discovery. Over the course of the next several months, Litvinova counsel repeatedly 5 fell down on his discovery obligations. He made meritless objections to some of the City’s 6 interrogatories, fully failed to respond to other requests, and violated Court-imposed deadlines. 7 See Dkt. 180, at 2–3. The City moved for sanctions under Rule 37. See Dkt. 159. 8 In the sanctions proceeding, Litvinova counsel claimed that his failings were caused by 9 various personal circumstances. He claimed that he failed to participate in discovery in June 10 because he was busy with motions practice and depositions in another case. See Dkt. 180, at 5. In 11 July, it was because he was in the Dominican Republic for several weeks due the death of his 12 wife’s nephew. See id. In August, he cited continuing medical issues, including problems with his 13 foot. See id. Those excuses were uniformly determined to be unsatisfactory, and sanctions were 14 imposed under Rule 37. See id. Though the sanctions order did not formally terminate the case, it 15 ordered certain key facts established against the Litvinova plaintiffs and dismissed the three class 16 members who Litvinova counsel failed to produce for a deposition. See id. 17 Litvinova counsel now moves for reconsideration of that order, purportedly under Rule 18 59(e). The thrust of his argument is that new materials facts demonstrate he was suffering from a 19 “life-threatening medical crisis” that impaired his ability to comply with his discovery obligations. 20 See Dkt. 193, at 3. Litvinova counsel claims that he withheld this information during the sanctions 21 proceeding because he was attempting to “protect his private medical information and dignity,” 22 and did not think full disclosure was necessary as he “did not expect this Court to question his 23 veracity after 35 years as an officer of the court.” Id., at 4. 24 II. LEGAL STANDARD 25 Litvinova counsel moves for reconsideration under Rule 59(e). That rule, however, 26 governs motions “to alter or amend a judgment,” not an interlocutory order like the imposition of 27 sanctions. Fed. R. Civ. P. 59(e) (emphasis added). For its part, the City contends that the 1 controlling legal standard comes from Civil Local Rule 7-9. That is also not quite right. Civil 2 Local Rule 7-9 applies only when a party is seeking leave of the court to file a motion for 3 reconsideration—leave that has already been granted here. See Dkt. 191. 4 The source of a district court’s ability to reconsider interlocutory orders is more 5 fundamental, and the permissible bases for reconsideration are open ended. “As long as a district 6 court has jurisdiction over the case, then it possesses inherent procedural power to reconsider, 7 rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles, 8 Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quoting Melancon v. 9 Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981)). 10 III. DISCUSSION 11 A. Willfulness 12 Litvinova counsel argues that “new material facts” demonstrate that his failure to respond 13 timely to the City’s discovery requests and to comply with court-imposed deadlines were not 14 “willful.” These purportedly new facts relate to the seriousness of his medical condition. Litvinova 15 counsel claims that he had some form of serious illness that caused him to “cough up blood and 16 suffer a constant hacking cough,” impairing his ability to try a case as far back as April 2025. See 17 Mot. at 4. This illness worsened, leading to two emergency surgeries in August 2025. See id. 18 Following those surgeries, Litvinova counsel’s doctor required him to remain out of work until 19 November 1, 2025. See id. 20 None of this is new. The order imposing sanctions recognized that Litvinova counsel had a 21 medically verified emergency which, according to his doctor, was to prevent him from working 22 between August 22 and October 6, 2025. See Dkt. 180, at 4 (citing to Dkt. 171, which included a 23 doctor’s note). The problem—then and now—is that Litvinova counsel has failed to explain how 24 to reconcile his medical emergency with the other evidence of dilatoriness. The evidence offered 25 during the sanctions proceeding indicated that Litvinova counsel was activity participating in his 26 other cases, making his claim of medical unavailability not credible. See id. Indeed, the City 27 submitted evidence that merely three days after the start of his claimed period of medical 1 unavailability, Litvinova counsel filed a motion for a new trial in another case. See id.; Dkt. 173. 2 Even if the information about his medical emergency is “new” as a matter of degree, 3 reconsideration is not appropriate. Information is not “new” in a legally relevant sense simply 4 because Litvinova counsel chose not to fully present it the first time around. He argues that he was 5 trying to preserve his personal dignity, but in doing so, it appears he misled the court about the 6 true reason for his indolence. See Dkt. 167 (blaming missed deadlines and discovery failures on 7 other professional obligations, his mother’s illness, and personal travel in addition to his medical 8 condition). If Litvinova counsel’s representations during the sanctions proceeding were 9 obfuscatory, sanctions would be more—not less—appropriate. 10 Moreover, nothing Litvinova counsel has presented explains his dilatory conduct before 11 April 2025. He now represents that his illness manifested in another trial in late April 2025 and 12 required hospitalization and surgery in August 2025. However, the sanctions order chastised 13 Litvinova counsel for lodging meritless objections to the City’s discovery requests made in 14 December 2024, and January 2025, as well as for blowing through a court-imposed discovery 15 deadline in mid-April 2025. Litvinova counsel has not presented any evidence that this medical 16 condition explains his conduct during that period. 17 B.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 TATYANA LITVINOVA, 10 Case No. 18-cv-01494-RS Plaintiff, 11 v. ORDER DENYING PLAINTIFF'S 12 MOTION FOR RECONSIDERATION THE CITY AND COUNTY OF SAN 13 FRANCISCO, 14 Defendant.
15 This motion arises out of a collective action alleging violations of the Fair Labor Standards 16 Act. Following a deeply troubling course of conduct—which included defiance of court orders— 17 sanctions were imposed against counsel for the Litvinova Plaintiffs under Rule 37. See Dkt. 180. 18 Litvinova counsel1 now moves for reconsideration of that decision, arguing that new information 19 has emerged which explains his dilatory representation. Dkt. 193. Pursuant to Civil Local Rule 7- 20 1(b), the motion is suitable for disposition without oral argument. Because Litvinova counsel has 21 not adduced new facts which call into question the basis of the sanctions order, the motion is 22 denied. 23 I. BACKGROUND 24 More than eight years ago, Tatyana Litvinova filed this collective action against the City 25 and County of San Francsico (collectively, “the City”) on behalf of “dual status” nurses, averring 26
27 1 Technically, the moving party is Litvinova, not Litvinova counsel. However, for ease of 1 that the City deprived the nurses of time-and-a-half pay in violation of the Fair Labor Standards 2 Act. See Dkt. 1. After discovery and motions practice, summary judgment was granted to the City. 3 See Dkt. 103. That decision was reversed by the Ninth Circuit, see Dkt. 124, which kicked off a 4 new round of discovery. Over the course of the next several months, Litvinova counsel repeatedly 5 fell down on his discovery obligations. He made meritless objections to some of the City’s 6 interrogatories, fully failed to respond to other requests, and violated Court-imposed deadlines. 7 See Dkt. 180, at 2–3. The City moved for sanctions under Rule 37. See Dkt. 159. 8 In the sanctions proceeding, Litvinova counsel claimed that his failings were caused by 9 various personal circumstances. He claimed that he failed to participate in discovery in June 10 because he was busy with motions practice and depositions in another case. See Dkt. 180, at 5. In 11 July, it was because he was in the Dominican Republic for several weeks due the death of his 12 wife’s nephew. See id. In August, he cited continuing medical issues, including problems with his 13 foot. See id. Those excuses were uniformly determined to be unsatisfactory, and sanctions were 14 imposed under Rule 37. See id. Though the sanctions order did not formally terminate the case, it 15 ordered certain key facts established against the Litvinova plaintiffs and dismissed the three class 16 members who Litvinova counsel failed to produce for a deposition. See id. 17 Litvinova counsel now moves for reconsideration of that order, purportedly under Rule 18 59(e). The thrust of his argument is that new materials facts demonstrate he was suffering from a 19 “life-threatening medical crisis” that impaired his ability to comply with his discovery obligations. 20 See Dkt. 193, at 3. Litvinova counsel claims that he withheld this information during the sanctions 21 proceeding because he was attempting to “protect his private medical information and dignity,” 22 and did not think full disclosure was necessary as he “did not expect this Court to question his 23 veracity after 35 years as an officer of the court.” Id., at 4. 24 II. LEGAL STANDARD 25 Litvinova counsel moves for reconsideration under Rule 59(e). That rule, however, 26 governs motions “to alter or amend a judgment,” not an interlocutory order like the imposition of 27 sanctions. Fed. R. Civ. P. 59(e) (emphasis added). For its part, the City contends that the 1 controlling legal standard comes from Civil Local Rule 7-9. That is also not quite right. Civil 2 Local Rule 7-9 applies only when a party is seeking leave of the court to file a motion for 3 reconsideration—leave that has already been granted here. See Dkt. 191. 4 The source of a district court’s ability to reconsider interlocutory orders is more 5 fundamental, and the permissible bases for reconsideration are open ended. “As long as a district 6 court has jurisdiction over the case, then it possesses inherent procedural power to reconsider, 7 rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles, 8 Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quoting Melancon v. 9 Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981)). 10 III. DISCUSSION 11 A. Willfulness 12 Litvinova counsel argues that “new material facts” demonstrate that his failure to respond 13 timely to the City’s discovery requests and to comply with court-imposed deadlines were not 14 “willful.” These purportedly new facts relate to the seriousness of his medical condition. Litvinova 15 counsel claims that he had some form of serious illness that caused him to “cough up blood and 16 suffer a constant hacking cough,” impairing his ability to try a case as far back as April 2025. See 17 Mot. at 4. This illness worsened, leading to two emergency surgeries in August 2025. See id. 18 Following those surgeries, Litvinova counsel’s doctor required him to remain out of work until 19 November 1, 2025. See id. 20 None of this is new. The order imposing sanctions recognized that Litvinova counsel had a 21 medically verified emergency which, according to his doctor, was to prevent him from working 22 between August 22 and October 6, 2025. See Dkt. 180, at 4 (citing to Dkt. 171, which included a 23 doctor’s note). The problem—then and now—is that Litvinova counsel has failed to explain how 24 to reconcile his medical emergency with the other evidence of dilatoriness. The evidence offered 25 during the sanctions proceeding indicated that Litvinova counsel was activity participating in his 26 other cases, making his claim of medical unavailability not credible. See id. Indeed, the City 27 submitted evidence that merely three days after the start of his claimed period of medical 1 unavailability, Litvinova counsel filed a motion for a new trial in another case. See id.; Dkt. 173. 2 Even if the information about his medical emergency is “new” as a matter of degree, 3 reconsideration is not appropriate. Information is not “new” in a legally relevant sense simply 4 because Litvinova counsel chose not to fully present it the first time around. He argues that he was 5 trying to preserve his personal dignity, but in doing so, it appears he misled the court about the 6 true reason for his indolence. See Dkt. 167 (blaming missed deadlines and discovery failures on 7 other professional obligations, his mother’s illness, and personal travel in addition to his medical 8 condition). If Litvinova counsel’s representations during the sanctions proceeding were 9 obfuscatory, sanctions would be more—not less—appropriate. 10 Moreover, nothing Litvinova counsel has presented explains his dilatory conduct before 11 April 2025. He now represents that his illness manifested in another trial in late April 2025 and 12 required hospitalization and surgery in August 2025. However, the sanctions order chastised 13 Litvinova counsel for lodging meritless objections to the City’s discovery requests made in 14 December 2024, and January 2025, as well as for blowing through a court-imposed discovery 15 deadline in mid-April 2025. Litvinova counsel has not presented any evidence that this medical 16 condition explains his conduct during that period. 17 B. Proportionality of the Sanctions 18 Next, Litvinova counsel argues that the dismissal of plaintiffs not deposed was a 19 disproportionate sanction. He offers two reasons for the disproportionality of the sanctions. First, 20 he argues that the sanctions are disproportionate in light of the new evidence which undercuts the 21 finding of willfulness. See Mot. at 5. This argument is derivative of that already rejected, so it 22 fails. 23 Second, Litvinova counsel argues that he has “implemented remedial actions” to ensure 24 further compliance with court orders and discovery obligations. See Mot. at 5. There are two 25 problems with this argument. First, a promise to do something better in the future is not an excuse 26 for doing it poorly in the past. The order imposing sanctions determined that Litvinova counsel’s 27 conduct had already deprived the City of its right to litigate this matter fairly and expeditiously. 1 See Dkt. 180, at 6. Doing better going forward does not remedy that injury. 2 Second, there appears to be no assurance that these remedial actions will make any 3 difference. Litvinova counsel says that he has (1) hired new support staff, (2) hired two part-time 4 attorneys and has plans to hire a third in December, and (3) retained seasoned co-counsel. See 5 Mot. at 5. However, none of these new associates or co-counsel have entered an appearance in this 6 case. The City has also offered declarations stating that none intend to enter an appearance and 7 that their limited appearances at depositions has been not on behalf of the Litvinova plaintiffs, but 8 rather on behalf of Litvinova counsel. As a result, Litvinova counsel will continue to bear all the 9 responsibilities of this case—responsibilities which he has demonstrated himself incapable of 10 handling. 11 Litvinova counsel dedicates the remainder of his submission to distinguishing cases cited 12 in the sanctions order. See Mot. at 5–7. Notably, none of those cases compelled the imposition of 13 sanctions. The decision was based on the circumstances and conduct in this case, so even if the 14 cited cases were in some sense different, the imposition of sanctions would remain appropriate. 15 Regardless, Litvinova counsel’s proposed distinctions range from unpersuasive to 16 nonsensical. He asserts that Ralon v. Kaiser Foundation Health Plan is different because the 17 sanctioned party there was a pro se litigant who flagrantly disregarded court orders. See 2025 WL 18 833488, at *3 (N.D. Cal. March 17, 2025). If anything, the expectations placed on retained 19 counsel are higher than those placed on pro se litigants, making Litvinova counsel’s 20 transgressions—which were of the same kind as those in Ralon—especially unacceptable. 21 Equally incomprehensible is Litvinova counsel’s attempt to distinguish G-K Properties v. 22 Redevelopment Agency of City and San Jose, 577 F.2d 645 (9th Cir. 1978). He points out that the 23 defendant there sought full dismissal of the action, whereas the City here has requested a more 24 modest sanction. Again, that distinction works against Litvinova counsel. If the severity of the 25 sanctions must correspond to the seriousness of the conduct, it does not help Litvinova counsel to 26 compare the conduct at issue here to that at issue in a case in which more serious sanctions were 27 imposed. If the conduct here is the same or worse than in G-K Properties, it suggests that 1 Litvinova counsel got off easy. On the other hand, if the conduct here is less troubling, it does not 2 || imply that the sanctions imposed were too harsh. 3 Finally, Litvinova counsel asserts that this case is different from Fjelstad v. American 4 || Honda Motor Co., 262 F.2d 1134 (9th Cir. 1984) because, here, Litvinova counsel’s medical 5 issues contextualize his conduct in a manner absent in Fjelstad. This is the same argument already 6 || rejected, repackaged as a factual difference with another case. It fails for the reasons already 7 explained. 8 IV. CONCLUSION 9 Litvinova has not offered evidence sufficient to disturb the prior sanctions decision. The 10 || motion for reconsideration is denied. 11 12 || ITISSO ORDERED.
14 Dated: November 5, 2025
RICHARD SEEBORG = 16 Chief United States District Judge = 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING MOTION FOR RECONSIDERATION CASE No. 18-cv-01494-RS