United States District Court, N.D. California, San Jose Division
JAMES K. SONG, et al., Plaintiffs,
AARON DRENBERG, Defendant.
INTERIM ORDER RE DEFENDANT'S MOTION FOR CONTEMPT
AND FURTHER SANCTIONS Re: Dkt. No. 117
Virginia K. Demarchi United States Magistrate Judge.
October 11, 2019, the Court ordered plaintiff James Song
and/or his counsel to reimburse defendant Aaron Drenberg for
his reasonable attorneys' fees and costs incurred in
preparing the motions to compel with respect to Mr.
Drenberg's first set of document
requests(“the sanctions order”). Dkt.
No. 87. As the Court explained, Mr. Song failed to comply
with previous orders to serve written responses that complied
with Federal Rule of Civil Procedure 34(b)(2) and to produce
responsive documents. Dkt. No. 84 at 3-10.
Song sought relief from the Court's sanctions order. Dkt.
No. 102. Before Judge Koh ruled on Mr. Song's request for
relief or on any of the other motions pending before her,
plaintiffs voluntarily dismissed the action on November 1,
2019. Dkt. No. 111. On November 4, 2019, Judge Koh denied Mr.
Song's request for relief from the sanctions order. Dkt.
No. 112. Although Judge Koh denied the pending motions before
her as moot in view of plaintiffs' voluntary dismissal,
she noted that “Plaintiffs must still comply with Judge
DeMarchi's October 11, 2019 Order Re Sanctions.”
Dkt. No. 113.
November 15, 2019, Mr. Drenberg filed a motion seeking (1) an
order of contempt against Mr. Song's counsel, and (2)
additional sanctions with respect to Mr. Drenberg's
second set of document requests. Dkt. No. 117.
Although Mr. Drenberg acknowledged that “there were not
prior court orders specifically addressing Mr. Song's
responses to and production of documents in response to Mr.
Drenberg's second set of document requests, ” he
argued that the Court's earlier orders concerning the
first set of document requests “specifically spelled
out the requirements that Mr. Song and his attorney needed to
follow” and thus applied with equal force to any
responses to the second set. Id. at 6. Mr. Drenberg
contends that the responses Mr. Song provided to the second
set of document requests were identical to Mr. Song's
responses to the first set of requests, which the Court
already found deficient and in violation of its prior orders.
Id. at 7. Therefore, Mr. Drenberg says, the Court
should award sanctions as to the second set as well. Mr.
Drenberg's motion for sanctions concerning the second set
of document requests is noticed for hearing on December 31,
briefing on Mr. Drenberg's motion for sanctions as to the
second set of document requests closed, plaintiffs filed a
notice of appeal to the Ninth Circuit of Judge Koh's
November 4, 2019 orders. Dkt. No. 126 at 1. It is well
settled that “[t]he filing of a notice of appeal is an
event of jurisdictional significance-it confers jurisdiction
on the court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982). The Court therefore may
take no further action with respect to its October 11, 2019
order awarding sanctions related to Mr. Drenberg's first
set of document requests. See Donovan v. Mazzola,
761 F.2d 1411, 1414-15 (9th Cir. 1985) (on second appeal,
reversing district court's proceedings to determine final
amount of fines to be imposed because first appeal divested
district court of jurisdiction to quantify sanctions).
Because Mr. Drenberg's motion for sanctions as to the
second set of document requests relies on the Court's
reasons for awarding sanctions as to the first set, the Court
finds that this motion constitutes an “aspect of the
case involved in the appeal” over which it now lacks
jurisdiction. See Trulis v. Barton, 107 F.3d 685,
694-95 (9th Cir. 1995) (holding that after defendants
appealed district court's denial of their first motion
for sanctions, district court did not have jurisdiction to
consider defendants' second motion for sanctions based on
identical allegedly sanctionable conduct).
the same cannot be said for the portion of Mr. Drenberg's
motion concerning contempt. Mr. Drenberg's request that
the Court hold Mr. Song's counsel in contempt is not
based on the Court's earlier sanctions order, but rather
relates to a different order requiring Mr. Song's counsel
to read Title V of the Federal Rules of Civil Procedure and
Civil Local Rules 26-37, personally investigate the existence
and location of documents responsive to each of Mr.
Drenberg's document requests, and file a declaration
attesting that he has done so under penalty of perjury. Dkt.
No. 117 at 3 (quoting Dkt. No. 84 at 12). Because the
contempt issue is unrelated to the sanctions order on appeal,
the Court retains jurisdiction over that portion of Mr.
Drenberg's motion and will consider only that portion.
December 9, 2019, plaintiffs submitted a late opposition to
Mr. Drenberg's motion, including a response to the
contempt issue. Dkt. No. 134. Mr. Drenberg may file a reply
brief concerning only the contempt issue by December
16, 2019. The December 31, 2019 hearing on Mr.
Drenberg's motion is hereby CONTINUED to January 7, 2019.
IS SO ORDERED.
 These motions to compel were filed as
Dkt. Nos. 39, 65, ...