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The Eclipse Group LLP v. Target Corporation

United States District Court, S.D. California

July 6, 2017


v.
TARGET CORPORATION, et al, Defendants.

          ORDER DENYING INTERVENOR'S EX PARTE MOTION FOR RECONSIDERATION OF SANCTIONS [ECF No. 138]

          Hon. Barbara L. Major United States Magistrate Judqe

         Currently before the Court is Intervener's June 29, 2017 nEX PARTE MOTION FOR RECONSIDERATION OF SANCTIONS" [ECF No. 138 ("Mot.")], Defendants' July 1, 2017 opposition to the motion [ECF No. 139 ("Oppo.")], Intervener's July 2, 2017 reply [ECF No. 140 ("Reply")], and Defendants' July 5, 2017 supplemental opposition to the motion [ECF No. 142 ("Supp. Oppo.")].[1] For the reasons set forth below, Intervener's motion is DENIED.

         PROCEDURAL BACKGROUND

         On May 12, 2017, the Court issued an "ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO COMPEL DEPOSITIONS AND FOR SANCTIONS." ECF No. 127. Defendants sought an order from the Court compelling Intervenor to appear for his deposition and to pay $2, 992.50 in sanctions to Defendants. ECF No. 97-1 at 17. The Court found that Defendants properly and timely served the notice for Intervener's deposition. While Defendants should have contacted Intervenor to coordinate the scheduling of Intervener's deposition, Defendants repeatedly advised Intervenor that they were willing to reschedule his deposition to a convenient date. Intervenor, on the other hand, refused to work with Defendants to find a new date. This behavior is unacceptable. It only would have taken Intervenor a few minutes to look at his calendar and send defense counsel a list of dates he was available to be deposed, on the condition that defense counsel obtain court approval for the deposition to occur after the close of discovery. Intervener's refusal to coordinate with defense counsel and his insistence that Defendants file the instant motion to compel warrants the imposition of sanctions.

         ECF No. 127 at 8-9.

         On June 1, 2017, the parties filed a "JOINT MOTION TO EXTEND DEADLINES FROM COURT'S RECENT ORDERS." ECF No. 131. The parties sought in part, to continue the June 2, 2017 deadline for Intervenor to reimburse defense counsel in the amount of $2, 992.50 by thirty days, and the June 9, 2017 deadline for Intervenor to file a declaration verifying the payment by thirty days. Id., at 1-2. The Court granted the parties' motion on June 2, 2017 and ordered Intervenor to pay his sanctions on or before July 3, 2017. ECF No. 132.

         On June 29, 2017, Intervenor filed the instant motion. Mot.

         On July 5, 2017, Intervenor filed a Declaration stating that on "July 3, 2017, [he] mailed a personal check in the amount of $2, 992.50 to defense counsel's office address" in accordance with the Court's orders. ECF No. 141. at 1-2. On the same day, Defendants filed a SUPPLEMENTAL OPPOSITION TO INTERVENOR'S EX PARTE MOTION FOR RECONSIDERATION OF SANCTIONS. Supp. Oppo.

         LEGAL STANDARD

         Pursuant to Local Rule 7.l(i)(1), a party may apply for reconsideration "[w]henever any motion or any application or petition for any order or other relief has been made to any judge and has been refused in whole or in part. . . ." S.D. Cal. Civ.L.R. 7.l(i)(1). The party seeking reconsideration must show "what new or different facts and circumstances are claimed to exist which did not exist, or were not shown, upon such prior application." Id., Local Rule 7.l(i)(2) permits motions for reconsideration within "twenty-eight (28) days after the entry of the ruling, order or judgment sought to be reconsidered." Additionally, pursuant to Federal Rule of Civil Procedure 59(e), a party must file a "motion to alter or amend a judgment... no later than 28 days after the entry of the judgment." Fed.R.Civ.P. 59(e).

         PARTIES' POSITIONS

         Intervenor requests that the Court "reconsider the propriety of the factual basis for the Court's recent sanctions award" and amend or rescind the award because the premise of the Court's rationale does not justify sanctions, at least in the amount assessed. Mot. at 2. Intervenor argues that motion practice regarding his deposition could not have been avoided regardless of what he did or did not do and that it would have been premature of Intervenor to agree to a new deposition date until Defendants secured permission from the Court to take his deposition after the close of discovery. Id. Intervenor also argues that the sanctions are unfair because Defendants have committed "many un-sanctioned violations of clear, unequivocal rules of court" and not been sanctioned. Id. at 6.

         Defendants object to Intervener's motion because it is untimely and fails to include an affidavit or certified statement disclosing any new or different facts supporting the motion. Oppo. at 2. Defendants further object that Intervenor has not presented any basis for ex parte relief and that Intervenor could have filed a duly noticed motion. Id., at 3. Defendants contend that the Court properly awarded sanctions. Id. at 3-4. Finally, Defendants object to Intervener's "repeated and false statements that Defendants have violated the Court['s] Order." Supp. Oppo. at 3.

         Intervenor replies that he "delayed requesting reconsideration because until a few days ago, discovery motions requesting additional sanctions were still pending, and the sanctions at issue are due for payment on July 3, 2017" and that "nothing Intervenor did (or failed to do) actually 'impeded, delayed, or frustrated the fair ...


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