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Joe Hand Promotions, Inc. v. Tolone

United States District Court, Ninth Circuit

September 24, 2013

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
CHRISTOPHER MARTIN TOLONE, and BIG ROCK INN, Defendants

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable William D. Keller, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Throughout this litigation, Defendant Christopher Tolone ("Tolone") has failed to take any meaningful action toward discharging his discovery obligations. Despite formal discovery requests and a Court order, Tolone willfully has refused to give Plaintiff basic written discovery and willfully has failed to appear for his deposition. Without explanation, Tolone also has failed to appear for a settlement conference and for two motion hearings. Terminating sanctions against Tolone are now appropriate.

FACTS

Plaintiff filed this action on May 16, 2011. Tolone, pro se, filed an Answer on August 2, 2011.

On November 4, 2011, the Magistrate Judge ordered that the parties appear in person for a settlement conference on November 28, 2011. On November 28, 2011, counsel for Plaintiff appeared, but no Defendant appeared.

Defendant Big Rock Inn, the only named Defendant other than Tolone, has never filed an Answer. On June 22, 2012, the Clerk entered the default of Defendant Big Rock Inn.

On October 26, 2012, Plaintiff filed a "Motion to Compel Discovery and an Order for Sanctions."[1] The Magistrate Judge ordered that a hearing on this motion take place on November 9, 2012. On November 9, 2012, counsel for Plaintiff appeared, but Tolone did not appear.

By Minute Order filed November 9, 2012, the Magistrate Judge ordered, inter alia, that, within thirty days of the date of the Order, Tolone:

(1) serve answers without objection to all of Plaintiff's interrogatories; (2) serve responses without objection to all of Plaintiff's requests for production; (3) permit the inspection and copying of all documents responsive to Plaintiff's requests for production (except the documents responsive to Request No. 23 that do not concern either the PROGRAM or the Big Rock Inn need not be produced); and (4) submit to the Premises Inspection requested by Plaintiff.

The same Order required that Tolone appear for his deposition within sixty days of the date of the Order. The Order specifically cautioned Tolone that "failure timely to comply with this Order may result in the imposition of drastic sanctions including, without limitation, the striking of his Answer and Entry of Judgment against him."

Nevertheless, Tolone failed to comply with any aspect of the November 9, 2012 Order. On July 17, 2013, Plaintiff filed a "Motion to Strike Defendants' Answer and Affirmative Defenses" ("the Motion"). The Motion seeks, inter alia, the striking of Tolone's Answer and the entry of his default.[2] Tolone did not file any ...


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