3 6 TOMAHAWK MANUFACTURING, INC., 7 et al., Case No. 2:23-cv-01007-APG-NJK
8 Plaintiff(s), Order
9 v. [Docket Nos. 357, 358]
10 SPHERICAL INDUSTRIES, INC., et al., 11 Defendant(s). 12 Pending before the Court is Plaintiffs’ motion to compel discovery, to extend case 13 management deadlines, and to award expenses, including attorneys’ fees. Docket No. 357; see 14 also Docket No. 358 (sealed version). Defendants filed a response. Docket No. 365. Plaintiffs 15 filed a reply. Docket No. 368.1 The motion is properly resolved without a hearing. See Local 16 Rule 78-1.2 18 “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. 19 Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574, 598 20 (1998). When a party fails to provide discovery, the requesting party may move to compel it. Fed. 21 R. Civ. P. 37(a). The party seeking to avoid discovery bears the burden of showing why the 22 discovery should not be permitted. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) 23 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). The party resisting 24
25 1 Motions to seal and redact were filed in relation to this motion practice. Docket Nos. 359, 369. The Court has endeavored to omit any potentially sensitive information from this order. 26 The Court defers ruling on the motions to seal and redact at this time in light of the pending order to show cause regarding sealing. Docket No. 329. 27 2 As the parties are familiar with the facts and procedural posture of the case, the Court will 28 not provide a background discussion herein. 1 discovery must specifically detail the reasons why each request is irrelevant or otherwise 2 objectionable, and may not rely on boilerplate, generalized, conclusory, or speculative arguments. 3 F.T.C. v. AMG Servs., Inc., 291 F.R.D. 544, 553 (D. Nev. 2013). Arguments against discovery 4 must be supported by “specific examples and articulated reasoning.” E.E.O.C. v. Caesars Ent., 5 237 F.R.D. 428, 432 (D. Nev. 2006). 7 On August 29, 2024, Plaintiffs served requests for production. Docket No. 357-2. 8 Responses were due within 30 days. See Fed. R. Civ. P. 34(b)(2)(A). As Plaintiffs argue, any 9 objections to the request for production are now waived. Docket No. 357 at 4. Defendants 10 acknowledge that they failed to meet that deadline. Nonetheless, Defendants argue that Plaintiffs’ 11 request is moot because Defendants served responses after the motion to compel was filed that 12 indicate in large part that they have responsive documents that they will produce at some 13 unspecified time in the future. See Docket No. 365 at 5; see also Docket No. 365-7. Defendants’ 14 position is hogwash. This aspect of the motion to compel is GRANTED. Defendants must 15 produce responsive documents by October 23, 2024. 17 On August 29, 2024, Plaintiffs served a notice for the deposition of James Motter to be 18 taken on September 20, 2024. Docket No. 357-4. Defendants now argue that Motter is not a party 19 to this litigation, such that a subpoena had to be served rather than a notice of deposition. See, 20 e.g., Docket No. 365 at 2-4. 21 A party may depose a person by serving “reasonable written notice.” Fed. R. Civ. P. 22 30(b)(1). “If a person is a party, a simple notice of deposition is sufficient to compel attendance, 23 while a non-party’s attendance can be compelled only by subpoena.” Jules Jordan Video, Inc. v. 24 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir.2010). In the context of a corporate party, a 25 natural person is deemed a party for Rule 30(b)(1) notice purposes if that person is the party’s 26 officer, director, or managing agent. See, e.g., Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 27 628 n. 1 (C.D. Cal. 2005). The burden is on the examining party to establish the status of the 28 deponent as an officer, director, or managing agent, but this burden is a “modest” one and any 1 doubts are resolved in favor of the examining party. Nationstar Mtg., LLC v. Flamingo Trails No. 2 & Landscape Maintenance Assoc., 316 F.R.D. 327, 333 (D. Nev. 2016) (citing Calderon v. 3 Experian Info. Solutions, Inc., 287 F.R.D. 629, 632–33 (D. Id. 2012)). 4 The record more than suffices for Plaintiffs to meet their burden that Motter’s deposition 5 may be obtained through notice rather than subpoena. To wit, Spherical’s own website identifies 6 Motter as its Chief Legal Officer, Docket No. 357-6; see also Docket No. 357-1 at ¶ 11, which is 7 also corroborated by deposition testimony, Docket No. 358-2. Defendants filed a declaration with 8 a contrary version of reality that Motter is merely a former investor who assumed his money was 9 lost upon being ghosted by Spherical. See Docket No. 365-2 at ¶ 3.3 Notwithstanding that 10 declaration, Plaintiffs met their “modest burden” and the Court resolves doubts on this issue in 11 Plaintiffs’ favor. E.g., Flamingo Trails, 316 F.R.D. at 333. 12 Accordingly, this aspect of the motion to compel is GRANTED. Motter must appear for 13 deposition on an agreed-upon date by October 30, 2024. 14 IV. MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSION 15 On August 30, 2024, Plaintiffs served requests for admission. Docket No. 357-7. In 16 addition to objections, Defendants responded that they are unable to admit or deny because 17 documents remain with prior counsel. Docket No. 357-8. 18 An answering party “may assert lack of knowledge or information as a reason for failing 19 to admit or deny only if the party states that it has made reasonable inquiry and that the information 20 it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4). 21 The answering party bears the burden of undertaking a reasonable inquiry into readily obtainable 22 information from persons and/or documents within the answering party’s relative control. Jones 23 v. Zimmer, 2014 WL 6772916, at *5 (D. Nev. Dec. 2, 2014) (collecting cases). A boilerplate 24 assertion of having undertaken a reasonable inquiry is not sufficient; the answering party must 25 26 3 Plaintiffs note the paradoxical nature of Defendants’ position that, on the one hand, they 27 have no authority to accept service of a deposition notice for Motter while, on the other hand, they apparently have the authority to file his declaration and advance argument on his behalf. See 28 Docket No. 368 at 3. 1 instead “state fully those efforts” undertaken to obtain the needed information. F.D.I.C. v. 2 Halpern, 271 F.R.D. 191, 194 (D. Nev. 2010). 3 Defendants’ responses indicate that they cannot admit or deny the requests because they 4 have not received documents from their former attorney, despite current counsel being “in contact 5 with former counsel.” Docket No. 357-8. The Court agrees with Plaintiffs that the answers do not 6 “state fully those efforts” undertaken to obtain the needed information, as is required. Further 7 elaboration is particularly necessary in this case, given that Defendants’ assertion of a lack of 8 access to documents is contradicted by the assertions of prior counsel in the exhibits to Defendants’ 9 own briefing. See, e.g., Docket No.
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3 6 TOMAHAWK MANUFACTURING, INC., 7 et al., Case No. 2:23-cv-01007-APG-NJK
8 Plaintiff(s), Order
9 v. [Docket Nos. 357, 358]
10 SPHERICAL INDUSTRIES, INC., et al., 11 Defendant(s). 12 Pending before the Court is Plaintiffs’ motion to compel discovery, to extend case 13 management deadlines, and to award expenses, including attorneys’ fees. Docket No. 357; see 14 also Docket No. 358 (sealed version). Defendants filed a response. Docket No. 365. Plaintiffs 15 filed a reply. Docket No. 368.1 The motion is properly resolved without a hearing. See Local 16 Rule 78-1.2 18 “[B]road discretion is vested in the trial court to permit or deny discovery.” Hallett v. 19 Morgan, 296 F.3d 732, 751 (9th Cir. 2002); see also Crawford-El v. Britton, 523 U.S. 574, 598 20 (1998). When a party fails to provide discovery, the requesting party may move to compel it. Fed. 21 R. Civ. P. 37(a). The party seeking to avoid discovery bears the burden of showing why the 22 discovery should not be permitted. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019) 23 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975)). The party resisting 24
25 1 Motions to seal and redact were filed in relation to this motion practice. Docket Nos. 359, 369. The Court has endeavored to omit any potentially sensitive information from this order. 26 The Court defers ruling on the motions to seal and redact at this time in light of the pending order to show cause regarding sealing. Docket No. 329. 27 2 As the parties are familiar with the facts and procedural posture of the case, the Court will 28 not provide a background discussion herein. 1 discovery must specifically detail the reasons why each request is irrelevant or otherwise 2 objectionable, and may not rely on boilerplate, generalized, conclusory, or speculative arguments. 3 F.T.C. v. AMG Servs., Inc., 291 F.R.D. 544, 553 (D. Nev. 2013). Arguments against discovery 4 must be supported by “specific examples and articulated reasoning.” E.E.O.C. v. Caesars Ent., 5 237 F.R.D. 428, 432 (D. Nev. 2006). 7 On August 29, 2024, Plaintiffs served requests for production. Docket No. 357-2. 8 Responses were due within 30 days. See Fed. R. Civ. P. 34(b)(2)(A). As Plaintiffs argue, any 9 objections to the request for production are now waived. Docket No. 357 at 4. Defendants 10 acknowledge that they failed to meet that deadline. Nonetheless, Defendants argue that Plaintiffs’ 11 request is moot because Defendants served responses after the motion to compel was filed that 12 indicate in large part that they have responsive documents that they will produce at some 13 unspecified time in the future. See Docket No. 365 at 5; see also Docket No. 365-7. Defendants’ 14 position is hogwash. This aspect of the motion to compel is GRANTED. Defendants must 15 produce responsive documents by October 23, 2024. 17 On August 29, 2024, Plaintiffs served a notice for the deposition of James Motter to be 18 taken on September 20, 2024. Docket No. 357-4. Defendants now argue that Motter is not a party 19 to this litigation, such that a subpoena had to be served rather than a notice of deposition. See, 20 e.g., Docket No. 365 at 2-4. 21 A party may depose a person by serving “reasonable written notice.” Fed. R. Civ. P. 22 30(b)(1). “If a person is a party, a simple notice of deposition is sufficient to compel attendance, 23 while a non-party’s attendance can be compelled only by subpoena.” Jules Jordan Video, Inc. v. 24 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir.2010). In the context of a corporate party, a 25 natural person is deemed a party for Rule 30(b)(1) notice purposes if that person is the party’s 26 officer, director, or managing agent. See, e.g., Cadent Ltd. v. 3M Unitek Corp., 232 F.R.D. 625, 27 628 n. 1 (C.D. Cal. 2005). The burden is on the examining party to establish the status of the 28 deponent as an officer, director, or managing agent, but this burden is a “modest” one and any 1 doubts are resolved in favor of the examining party. Nationstar Mtg., LLC v. Flamingo Trails No. 2 & Landscape Maintenance Assoc., 316 F.R.D. 327, 333 (D. Nev. 2016) (citing Calderon v. 3 Experian Info. Solutions, Inc., 287 F.R.D. 629, 632–33 (D. Id. 2012)). 4 The record more than suffices for Plaintiffs to meet their burden that Motter’s deposition 5 may be obtained through notice rather than subpoena. To wit, Spherical’s own website identifies 6 Motter as its Chief Legal Officer, Docket No. 357-6; see also Docket No. 357-1 at ¶ 11, which is 7 also corroborated by deposition testimony, Docket No. 358-2. Defendants filed a declaration with 8 a contrary version of reality that Motter is merely a former investor who assumed his money was 9 lost upon being ghosted by Spherical. See Docket No. 365-2 at ¶ 3.3 Notwithstanding that 10 declaration, Plaintiffs met their “modest burden” and the Court resolves doubts on this issue in 11 Plaintiffs’ favor. E.g., Flamingo Trails, 316 F.R.D. at 333. 12 Accordingly, this aspect of the motion to compel is GRANTED. Motter must appear for 13 deposition on an agreed-upon date by October 30, 2024. 14 IV. MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSION 15 On August 30, 2024, Plaintiffs served requests for admission. Docket No. 357-7. In 16 addition to objections, Defendants responded that they are unable to admit or deny because 17 documents remain with prior counsel. Docket No. 357-8. 18 An answering party “may assert lack of knowledge or information as a reason for failing 19 to admit or deny only if the party states that it has made reasonable inquiry and that the information 20 it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4). 21 The answering party bears the burden of undertaking a reasonable inquiry into readily obtainable 22 information from persons and/or documents within the answering party’s relative control. Jones 23 v. Zimmer, 2014 WL 6772916, at *5 (D. Nev. Dec. 2, 2014) (collecting cases). A boilerplate 24 assertion of having undertaken a reasonable inquiry is not sufficient; the answering party must 25 26 3 Plaintiffs note the paradoxical nature of Defendants’ position that, on the one hand, they 27 have no authority to accept service of a deposition notice for Motter while, on the other hand, they apparently have the authority to file his declaration and advance argument on his behalf. See 28 Docket No. 368 at 3. 1 instead “state fully those efforts” undertaken to obtain the needed information. F.D.I.C. v. 2 Halpern, 271 F.R.D. 191, 194 (D. Nev. 2010). 3 Defendants’ responses indicate that they cannot admit or deny the requests because they 4 have not received documents from their former attorney, despite current counsel being “in contact 5 with former counsel.” Docket No. 357-8. The Court agrees with Plaintiffs that the answers do not 6 “state fully those efforts” undertaken to obtain the needed information, as is required. Further 7 elaboration is particularly necessary in this case, given that Defendants’ assertion of a lack of 8 access to documents is contradicted by the assertions of prior counsel in the exhibits to Defendants’ 9 own briefing. See, e.g., Docket No. 365-15.4 10 Accordingly, this aspect of the motion to compel is GRANTED.5 Defendants must 11 supplement their responses by October 23, 2024. 13 Plaintiffs seek an extension of case management deadlines to account for the rulings made 14 herein. The Court may extend unexpired deadlines upon a showing of good cause. Local Rule 15 26-3. The Court does not discern a need to reopen the discovery cutoff generally, as discovery is 16 closed in this case except with respect to the specific items compelled above. With respect to the 17 dispositive motion deadline, the Court agrees with Plaintiffs that a short extension is warranted. 18 Accordingly, this aspect of the motion is GRANTED in part. The deadline for dispositive motions 19 20 21 22 23 4 Although Defendants reference their undue burden objection, see Docket No. 365 at 6, 7, 24 the Court is not persuaded because Defendants failed to support that objection with meaningfully developed argument, see Jones, 2014 WL 6772916, at *4; see also Flamingo Trails, 316 F.R.D. 25 at 334 (addressing requirement for development and support required for undue burden objection). 26 5 “When a responding party fails to comply with these requirements, the Court has discretion to order that proper responses be provided or to deem admitted the requests for 27 admission.” See Jones, 2014 WL 6772916, at *5 (citing Asea, Inc. v. S. Pac. Transp. Co., 699 F.2d 1242, 1247 (9th Cir. 1981)). At this juncture, the Court declines to deem these requests 28 admitted. 1] is EXTENDED to November 20, 2024,° and the deadline for the joint proposed pretrial order is 2|| EXTENDED to December 20, 2024.’ 3] VI. MOTION FOR AN AWARD OF EXPENSES 4 Plaintiffs seek an award of expenses with respect to bringing the instant motion. Docket 5] No. 357. The Court finds it appropriate to defer resolution of this request so the parties can 6] evaluate their positions on expenses in light of the rulings made above. Although not required to 7|| do so, counsel may also find it useful to confer on the issue of expenses. Moreover, the Court 8|| prefers to defer ruling on expenses until after the above deadlines so that Defendants’ compliance 9] with this order may be assessed. If Plaintiffs continue to seek expenses arising out of the rulings 10] made herein, a renewed motion must be filed by November 6, 2024. Any renewed motion must 11} include meaningful discussion of all pertinent issues,* as well as all required support as to the 12] amount of expenses being sought. Accordingly, the motion for an award of expenses is DENIED without prejudice. 14) CONCLUSION 15 For the reasons discussed above, Plaintiffs’ motion to compel is GRANTED, Plaintiffs’ 16] motion to extend case management deadlines is GRANTED in part and DENIED in part, and 17| Plaintiffs’ motion for an award of expenses is DENIED without prejudice. 19 Dated: October 15, 2024 Nancy J. Koppe, \. 21 United States-Magistrate Judge 22 23 6 Although the Court is extending the dispositive motion deadline so that the discovery compelled herein can be obtained before that briefing, this order should not be interpreted as in 241 any way extending the outer deadline for filing discovery motions. Cf Garcia v. Serv. Emps. Int’! Union, 332 F.R.D. 351, 354 (D. Nev. 2019). The outer deadline for filing discovery motions 25] remains set at November 6, 2024. 26 TIf dispositive motions are filed, the pretrial order deadline is suspended until 30 days after they are resolved. Local Rule 26-1(b)(5). Any renewed motion must also specify under which provision or provisions in Rule 37 relief is sought. General reference to Rule 37 is not helpful. See Docket No. 357 at 11.