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Stewart Title Guaranty Co. v. 2485 Calle Del Oro, LLC

United States District Court, S.D. California

November 3, 2017

STEWART TITLE GUARANTY COMPANY, Plaintiff,
v.
2485 CALLE DEL ORO, LLC, et al., Defendants.

          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, 54]

          Hon. Cynthia Bashant United States District Judge

         Presently 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).

         On May 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.)

         For the reasons set forth below, the Court adopts in part and declines to adopt in part the R&R.

         I. BACKGROUND

         The 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).

         In 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 ordered; and
(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 ...

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