United States District Court, S.D. California
ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON
PLAINTIFF'S MOTION FOR SANCTIONS [ECF NOS. 45,
Cynthia Bashant United States District Judge
before the Court is Magistrate Judge William Gallo's
Report and Recommendation (“R&R”) (ECF No.
54) regarding Plaintiff Stewart Title Guaranty Company's
Motion to Impose Sanctions Pursuant to FRCP 37(b)
(“Motion for Sanctions”) (ECF No. 45).
2, 2017, Plaintiff filed its Motion for Sanctions against
Defendants Courtland Gettel and Conix VRC, LLC
(“Defendants”) and their counsel, Joseph
Sammartino, for failure to comply with a court order
compelling discovery. (ECF No. 45.) Plaintiff sought
sanctions including the striking of Defendants' answers
to the Complaint, entry of default judgments against these
Defendants, and the imposition of monetary sanctions on
Defendants and Mr. Sammartino in connection with
Plaintiff's expenses incurred in connection with the
motion for sanctions and a prior motion to compel.
(Id.) Defendants Court Gettel and Conix VRC, LLC and
Mr. Sammartino did not file an opposition to the motion for
sanctions. Judge Gallo held a hearing on the motion for
sanctions on July 14, 2017, which only Plaintiff's
counsel attended. On August 7, 2017, Judge Gallo issued the
R&R on Plaintiff's Motion for Sanctions. (ECF No.
54.) The time for filing objections to the R&R expired on
August 22, 2017. (Id. at 35:1-3.) On August 29,
2017, Plaintiff filed a notice of non-receipt of objection to
the R&R. (ECF No. 55.) Defendants Court Gettel and Conix
VRC, LLC and Mr. Sammartino made no objection to the R&R.
This Court subsequently held a hearing on an order to show
cause why the R&R should not be adopted in its entirety.
(ECF Nos. 56, 58.)
reasons set forth below, the Court adopts in part and
declines to adopt in part the R&R.
Court hereby incorporates the fact section of the R&R
(ECF No. 54) in its entirety, which Judge Gallo certified
pursuant to 28 U.S.C. §636(e)(6).
particular, the Court notes the following facts:
(1) Although Mr. Sammartino repeatedly promised the Court and
the Plaintiff that discovery was forthcoming, that discovery
has still not been produced two years into this case;
(2) After months of promises to provide requested discovery,
Plaintiff's counsel's voicemails and email inquiries
to Mr. Sammartino beginning in 2017, remained unanswered.
Specifically, Plaintiff's counsel reached out to Mr.
Sammartino twice in January 2017 and multiple times in
February 2017 without any response;
(3) At a status conference set before Magistrate Judge Skomal
on February 24, 2017, Mr. Sammartino explained that he had
been out of the country and did not have access to his email;
(4) Mr. Sammartino again failed to respond to Plaintiff's
counsel's inquiries by telephone and email on multiple
occasions in March 2017, and no discovery was forthcoming;
(5) Judge Skomal set a conference for March 24, 2017 to learn
why the discovery had still not been produced. Instead of
informing the Court he was unavailable or requesting
rescheduling of the conference, Mr. Sammartino instead failed
to appear, emailing Plaintiff's counsel that he should
inform the Court of Mr. Sammartino's unavailability. The
status conference went on without Mr. Sammartino.
(6) After the transfer of the case, Judge Gallo ordered
further briefing on Plaintiff's Motion for Sanctions and
ordered Defendants and Mr. Sammartino to appear for a hearing
on July 14, 2017. Both orders were ignored - no briefing was
filed and neither Defendants, nor Mr. Sammartino appeared as
(7) Defendants and Mr. Sammartino ignored the formal
discovery deadlines and failed to respond to Requests for
Production of Documents and Interrogatories served on January
25, 2017. These Requests and ...