Shaw v. Dephillips

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 NORMAN SHAW, Case No.: 20-cv-02528-AJB-KSC Plaintiff, 12 ORDER OVERRULING PLAINTIFF’S v. OBJECTION TO MAGISTRATE [13] JUDGE’S JANUARY 27, 2022 ORDER RUSSELL DEPHILLIPS, an individual; [14] and DOES 1-20, inclusive, (Doc. No. 89) 15 Defendants. [16] Presently before the Court is Plaintiff Norman Shaw’s (“Shaw”) objection to [17] Magistrate Judge Karen S. Crawford’s order granting in part and denying in part Defendant [18] Russell DePhillips’ (“Defendant”) motion for sanctions. (Doc. No. 89.) Pursuant to Local [19] Civil Rule 7.1.d.1, the Court finds the motion suitable for determination on the papers [20] submitted and without oral argument. For the reasons set forth below, the Court [21] OVERRULES Shaw’s objection. [22] I. BACKGROUND [23] On January 27, 2022, Magistrate Judge Karen S. Crawford issued an order (“Order”) [24] granting sanctions on the basis “that plaintiff recklessly interfered with discovery for an [25] improper purpose,” and denying Defendant’s request for sanctions on the basis of [26] “suborning perjury.” (Doc. No. 80.) The Order required Shaw to remit payment to [27] Defendant for attorneys’ fees in the amount of $3,300.00, and for court reporter and [28] 1 videographer costs in the amount of $1,142.40, totaling $4,442.40. (Id. at 10.) Shaw was 2 required to remit payment to Defendant’s counsel no later than close of business on 3 February 10, 2022. (Id.) The Order followed Magistrate Judge Crawford’s finding that non4 parties Robert Haig (“Haig”) and Donna Johnson (“Johnson”) failed to appear at their 5 depositions and to produce relevant documents in compliance with lawfully issued 6 subpoenas due to Shaw’s reckless interference with discovery for an improper purpose. 7 (Id. at 7.) The instant objection follows. (Doc. No. 89.) 8 II. LEGAL STANDARD 9 A party may object to a non-dispositive pretrial order of a magistrate judge within 10 fourteen days after service of the order. See Fed. R. Civ. P. 72(a). The magistrate judge’s 11 order will be upheld unless it is “clearly erroneous or contrary to law.” Id.; 28 U.S.C. 12 § 636(b)(1)(A). The “clearly erroneous” standard applies to factual findings and 13 discretionary decisions made in connection with non-dispositive pretrial discovery matters. 14 F.D.I.C. v. Fid. & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D. Cal. 2000); Joiner v. 15 Hercules, Inc., 169 F.R.D. 695, 697 (S.D. Ga. 1996) (reviewing magistrate judge’s order 16 addressing attorney-client issues in discovery for clear error). Review under this standard 17 is “significantly deferential, requiring a definite and firm conviction that a mistake has been 18 committed.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. of S. 19 Cal., 508 U.S. 602, 623 (1993) (internal quotation marks omitted). 20 “Non-dispositive matters include ‘evidentiary rulings, pretrial discovery matters, 21 and the imposition of sanctions for discovery abuses.’” Estakhrian v. Obenstine, No. CV 22 11-03480 GAC(CWx), 2012 WL 12884889 , at *3 (C.D. Cal. Nov. 9, 2012) (quoting 23 Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518 (D. N.J. 2008)); see also F.D.I.C. v. Fid. & 24 Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D. Cal. 2000) (“The ‘clearly erroneous’ 25 standard applies to factual findings and discretionary decisions made in connection with 26 non-dispositive pretrial discovery matters.”). There is no doubt that the dispute currently 27 before the Court involves a pretrial-discovery matter because it is based on the imposition 28 of sanctions for discovery abuses. See Fed. R. Civ. P. 72(a). 1 III. DISCUSSION 2 Shaw asserts he did not recklessly interfere with discovery for an improper purpose 3 because he did not cause Haig and Johnson to fail to appear at their depositions or fail to 4 produce documents. (Doc. No. 89 at 6.) Shaw further argues the “deposition[s] did not take 5 place because Haig objected to being deposed until a protective order was in place . . . and 6 Johnson objected to being deposed until she was off pain medication.” (Id.) Between 7 improper and unprofessional complaints of Defendant and the Magistrate Judge, Shaw 8 goes on to state he had no influence over Haig’ request for a protective order or over 9 Johnson’s medical condition or pain medication. (Id. at 7.) Ultimately, Shaw asserts the 10 delays in discovery have been “a result of DePhillips [sic] motion practice” and that he 11 “did not impede discovery.” (Id.) 12 Because the challenge to the magistrate judge’s finding involves a discretionary 13 decision made in connection with a non-dispositive pretrial discovery matter, the clearly14 erroneous standard applies. See Fid. & Deposit Co. of Md., 196 F.R.D. at 378 . Upon 15 reviewing the relevant documents—including Shaw’s motion and the Magistrate Judge’s 16 January 27, 2022 Order—and taking into account that the clearly-erroneous standard is 17 “significantly deferential,” the Court cannot reach a “definite and firm conviction that a 18 mistake has been committed.” See Concrete Pipe & Prods. of Cal., 508 U.S. at 623. 19 There is nothing before the Court meeting the clearly-erroneous standard that 20 demonstrates the Magistrate Judge did not thoroughly consider Shaw’s involvement in the 21 delays to discovery. While Shaw may not have been the cause of Haig’s desire for a 22 protective order or Johnson’s pain medication, the record is clear that Shaw improperly 23 influenced both nonparties’ failure to comply with Defendant’s subpoenas. (See Doc. No. 24 57 at 16:6–17:15, 21:3–12, 41:15–42:12; 44:8–45:1.) The Court does not find Shaw has 25 made a good cause showing that he did not impede discovery for an improper purpose or 26 that the Magistrate Judge’s Order was clearly erroneous or contrary to law under 28 U.S.C. 27 § 636(b)(1)(A). Rather, the Court echoes the Magistrate Judge’s concerns of Shaw’s 28 litigation tactics. As such, Shaw must remit payment of $4,442.40 to Defendant’s counsel 1 || by personal delivery or certified mail no later than close of business on February 14, 2022. 2 || The Court further admonishes Shaw that continued noncompliance with the sanctions order 3 || will beg the question of whether contempt proceedings should be initiated. 4 ||IV. CONCLUSION 5 Based on the foregoing, the Cour. OVERRULES Shaw’s objection to Magistrate 6 Judge Karen S. Crawford’s January 27, 2022 Order. [7] 8 IT IS SO ORDERED. 9 Dated: February 11, 2022 © 10 Hon. Anthony J. attaglia United States District Judge