Globaltranz Enterprises LLC v. Pinnacle Logistics Group LLC ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Globaltranz Enterprises LLC, No. CV-22-00545-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Pinnacle Logistics Group LLC, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff GlobalTranz Enterprises, LLC’s motion for 16 sanctions against Defendant Nicholas Jarvis (“Jarvis”) due to spoliation of evidence (Doc. 17 67). Jarvis responded (Doc. 70) and GlobalTranz replied (Doc. 73). The Court now rules. 18 I. BACKGROUND 19 This litigation arises from events following Plaintiff’s purchase of Volition 20 Logistics, LLC. Volition Logistics was in the business of arranging transportation for 21 truckload-or-smaller shipments of various kinds of goods. (See Docs. 52 at 5–6; 58 at 3). 22 Essentially, as a third-party-logistics provider Volition contracted with carriers to move 23 goods on behalf of customers who needed goods moved. (See id.). Plaintiff alleges that the 24 individual defendants are former Volition employees who used trade secrets and other 25 confidential information belonging to Plaintiff to “jump start” a competing business, 26 Pinnacle Logistics Group, LLC. (Doc. 52 at 2). 27 Plaintiff now claims that, before Jarvis left Volition, he synced 32,000 Volition files 28 to a personal computer using Microsoft OneDrive (a cloud backup and file synchronization 1 service). (Doc. 67 at 2). Plaintiff also claims that Jarvis downloaded confidential Volition 2 files onto two portable flash drives, which have not been located. (Id. at 2–3). Jarvis denies 3 possessing the flash drives, claims that he did not take any confidential information with 4 him when he left Volition, and has testified that he does not remember inserting the flash 5 drives in the first place. (Docs. 67-2 at 7–8, 11–13, 15, 42; 70-1 at 27). Jarvis has suggested 6 that this lack of memory may be due to contracting COVID during the month when the 7 flash drives were inserted. (Doc. 67-2 at 7). 8 Because Plaintiff has recovered the 32,000 OneDrive files, Plaintiff seeks spoliation 9 sanctions only relating to the information on the missing flash drives. (Doc. 67 at 2; 67-1 10 at 4–5; 73 at 5).1 Specifically, Plaintiff requests that this Court presume, and eventually 11 instruct the jury, that Jarvis copied Volition’s confidential and trade secret information onto 12 the flash drives and used that information at Pinnacle. (Doc. 67 at 18). 13 II. ANALYSIS 14 Plaintiff argues that it has satisfied the relevant standard for this severe sanction. 15 (Doc. 67 at 11–18). Jarvis counters that Plaintiff has not identified the correct legal standard 16 and has not presented enough evidence to satisfy it. (Doc. 70 at 2–3). The Court will 17 determine the correct legal standard and then consider whether that standard is satisfied. 18 a. Appropriate Legal Standard 19 “Spoliation is the destruction or material alteration of evidence, or the failure to 20 otherwise preserve evidence, for another’s use in litigation.” Fast v. GoDaddy.com LLC, 21 340 F.R.D. 326, 334 (D. Ariz. 2022) (citing Surowiec v. Cap. Title Agency, Inc., 790 F. 22 Supp. 2d 997, 1005 (D. Ariz. 2011)). Two independent sources of power authorize 23 1 Plaintiff also states that “[n]othing relating to the OneDrive issue must be resolved in order to rule on the Motion.” (Doc. 73 at 5). Plaintiff further states that it is irrelevant 24 whether Jarvis copied trade secrets to OneDrive, why the OneDrive account was set up in another Volition employee’s name, why the computer that synced files to OneDrive was 25 different than the computer into which the flash drives were inserted, why the OneDrive account was in use for three months after Jarvis’s employment ended, and why the folder 26 structure in the OneDrive account is different from the folder structure on Jarvis’s Volition computer (Id. at 5–8). Considering the factual uncertainty surrounding the OneDrive 27 account, the Court finds that Jarvis’s denial that he created the OneDrive account does not by itself necessarily prove that Jarvis is “untrustworthy.” Given Plaintiff’s insistence that 28 the OneDrive issue is irrelevant to ruling on the motion, the Court draws no other conclusions from the evidence and arguments regarding the OneDrive account. 1 sanctions against “a party who has despoiled evidence: the inherent power of federal courts 2 to levy sanctions in response to abusive litigation practices,” and Federal Rule of Civil 3 Procedure 37. See Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006); Fed. R. Civ. 4 P. 37(b), (e). Rule 37(e) “sets the standards for sanctions arising from the spoliation” of 5 electronically stored information (“ESI”). Fast, 340 F.R.D. at 334; see also Fed. R. Civ. P. 6 37(e) advisory committee’s note to the 2015 amendment (“. . . Rule 37(e) . . . . authorizes 7 and specifies measures a court may employ . . . and specifies the findings necessary to 8 justify these measures.”). Where it applies, the “detailed language of Rule 37(e)” forecloses 9 “reliance on inherent authority to determine whether” sanctions are appropriate. Newberry 10 v. County of San Bernardino, 750 Fed. App’x 534, 537 (9th Cir. 2018) (citing Fed. R. Civ. 11 P. 37(e) advisory committee’s note to the 2015 amendment) (cleaned up); Steven S. 12 Gensler & Lumen N. Mulligan, 1 Federal Rules of Civil Procedure, Rules and 13 Commentary, Rule 37 (2022). 14 In its motion for sanctions, Plaintiff relies on cases decided under inherent judicial 15 power prior to the introduction of the current rule 37(e) in 2015. (See Doc. 67 at 11) (citing 16 Surowiec, 790 F. Supp. 2d at 1005; Aviva USA Corp. v. Vazirani, No. CV 11-0369-PHX- 17 JAT, 2012 WL 71020 (D. Ariz. Jan. 10, 2012)). Jarvis argues in response that the evidence 18 at issue is ESI and that Plaintiff’s motion must instead be evaluated under Rule 37(e). (Doc. 19 70 at 2). Plaintiff does not address this contention in its reply, and does not explain why 20 the motion should be decided under the Court’s inherent powers. (See Doc. 73 at 1–13). 21 The Court finds that Rule 37(e) supplies the standard relevant to Plaintiff’s motion 22 because the lost evidence at issue—the allegedly confidential information allegedly stored 23 on the missing flash drives—is ESI. Cf., e.g., TLS Mgmt. & Mktg. Servs. LLC v. Rodriguez– 24 Toledo, 2017 WL 1155743, at *1–2 (D.P.R. Mar. 27, 2017) (treating a discarded laptop as 25 ESI); Sosa v. Carnival Corp., 2018 WL 6335178, at *10, 12, 14–15 (S.D. Fla. Dec. 4, 26 2018) (finding that video footage which may have been downloaded to a flash drive was 27 ESI); Stanbro v. Westchester Cnty. Health Care Corp., 2021 WL 3863396, at *10 28 (S.D.N.Y. Aug. 27, 2021) (finding that a video stored on a DVD was ESI); 4DD Holdings, 1 LLC v. United States, 143 Fed. Cl. 118, 126, 131 (2019) (finding that information on hard 2 drives which were physically destroyed was ESI). Plaintiff does not argue otherwise. 3 Under Rule 37(e) sanctions may be appropriate where ESI “that should have been 4 preserved in anticipation or conduct of litigation is lost because a party failed to take 5 reasonable steps to preserve it, and it cannot be restored or replaced through additional 6 discovery.” Fed. R. Civ P. 37(e). If the Court finds that the loss of the ESI prejudiced the 7 moving party, the Court “may order measures no greater than necessary to cure the 8 prejudice.” Fed. R. Civ P. 37(e)(1). Separately, where the despoiling party “acted with the 9 intent to deprive” the moving party “of the information’s use in the litigation,” the Court 10 may “instruct the jury that it may or must presume the information was unfavorable to the 11 [despoiling] party.”2 12 The party seeking sanctions has the “burden to affirmatively prove” these 13 prerequisites. See Anderson v. Armour, 2021 WL 5985014, at *1 (9th Cir. 2021); see also 14 Broadous v. Target Corp., 2023 WL 417900, at *2 (9th Cir. 2023). “The relevant standard 15 of proof for spoliation sanctions is preponderance of the evidence.” Fast, 340 F.R.D. at 16 335 (citing Burris v. JPMorgan Chase & Co., 2021 WL 4627312, at *11 (D. Ariz. Oct. 7, 17 2021); Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1052– 18 53 (S.D. Cal. 2015)). 19 b. Lost Information 20 Rule 37(e) only applies to information which has been lost and cannot be replaced 21 through additional discovery. Fed. R. Civ. P. 37(e) advisory committee’s note to the 2015 22 amendment. Both parties state that they do not have the flash drives and have been unable 23 to find them. (See Docs. 67-1 at 5; 67-2 at 45–50; 70 at 14–15). The Court therefore finds 24 that the information on them is lost. Jarvis argues that that the information on the flash 25 2 Fed. R. Civ. P. 37(e)(2). “Unlike Rule 37(e)(1), Rule 37(e)(2) does ‘does not include a requirement that the court find prejudice to the party deprived of the information. This is 26 because the finding of intent required by the subdivision can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but 27 also an inference that the opposing party was prejudiced by the loss of information that would have favored its position.’” SiteLock LLC v. GoDaddy.com LLC, 2022 WL 3716499, 28 at *5 (D. Ariz. Aug. 29, 2022) (quoting Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment). 1 drives is not lost because the folders and files copied to the drive should still exist on the 2 Volition computer from which they were copied. (Doc. 70 at 14; 16). Plaintiff replies that 3 Jarvis could have copied information from the computer onto the drive and then deleted it 4 from the computer. (Doc. 73 at 12). Plaintiff also notes that Jarvis could have remotely 5 accessed and copied information from elsewhere within Volition’s systems. (Id.). The 6 Court agrees with Plaintiff. Some of the information lost with the flash drives was the meta- 7 information regarding precisely which files were on the drives. This information is not 8 recoverable without accessing the lost drives, (see Doc. 76-3 at 4–5), and is therefore lost 9 information. 10 The Court also finds that, based on the available evidence and the positions of the 11 parties as discussed above, the information on the flash drives cannot be restored or 12 replaced through additional discovery. 13 c. Duty to Preserve 14 Rule 37(e) only permits sanctions relating to lost ESI that should have been 15 preserved. Fed. R. Civ. P. 37(e). In other words, Jarvis must have been under a duty to 16 preserve the ESI at the time it was lost or destroyed. Rule 37(e) “does not attempt to create 17 a new duty to preserve,” but rather is based on the common-law duty. Fed. R. Civ. P. 37 18 advisory committee’s note to the 2015 amendment. The common-law “duty to preserve 19 information arises when a party knows or should know that the information is relevant to 20 pending or future litigation.” Pettit v. Smith, 45 F. Supp. 3d 1099, 1105 (D. Ariz. 2014); 21 see also United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) 22 (“Defendants engage in spoliation of documents as a matter of law only if they had some 23 notice that the documents were potentially relevant to the litigation before they were 24 destroyed.”) (cleaned up). 25 This “is a flexible fact-specific standard that allows a district court to exercise the 26 discretion necessary to confront the myriad factual situations inherent in the spoliation 27 inquiry.” Micron Tech., Inc. v. Rambus, Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) (citing 28 Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)). It requires more than 1 “the mere existence of a potential claim or the distant possibility of litigation,” but litigation 2 need not be “imminent, or probable without significant contingencies.” Id. (citing Trask- 3 Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681–82 (7th Cir. 2008)). 4 Courts have, for example, found parties to be under a duty to preserve relevant 5 evidence where they have taken steps to prepare for litigation, such as by gathering 6 evidence or retaining counsel. E.g., Barsoum v. NYC Hous. Auth., 202 F.R.D. 396, 400 7 (S.D.N.Y. 2001); Fast, 340 F.R.D. at 337; Jones v. Riot Hosp. Grp., 2022 Wl 3682031, at 8 *4 (D. Ariz. Aug. 25, 2022). And of course, parties are typically on notice of litigation if 9 they receive an explicit threat of litigation. E.g., Surowiec, 790 F. Supp. 2d at 1005–06 10 (citation omitted); Nucor Corp. v. Bell, 251 F.R.D. 191, 195–96 (D.S.C. 2008). 11 Here, while Plaintiff has presented enough evidence to establish some foundational 12 facts by a preponderance of the evidence, Plaintiff has not met its burden to show that a 13 reasonable person would probably have known that information copied onto the flash 14 drives was potentially relevant to future litigation. 15 To convey precisely where Plaintiff’s showing has fallen short, the Court begins 16 with what Plaintiff has established, at least based on the evidence currently available and 17 for the purposes of deciding the pending motion. First, Plaintiff’s forensic computer 18 examiner found that two flash drives had been inserted into Jarvis’s Volition-assigned 19 computer between January 11 and January 13, 2022. (Doc. 67-3 at 4–5). Jarvis questions 20 whether the computer into which the flash drives were inserted was his computer, but does 21 not dispute that the flash drives were inserted into the examined computer on those dates. 22 (See Doc. 70-1 at 7; Doc. 70 at 12). Thus, Plaintiff has established that two flash drives 23 were inserted into the examined computer and the dates on which they were inserted. 24 Plaintiff has also established that the examined computer was probably Jarvis’s 25 Volition-assigned computer. Plaintiff submitted the declaration of its Director of 26 Operations, who attested that he went to Volition’s Phoenix office in February of 2022 and 27 identified Jarvis’s Volition-assigned computer by the fact that it was set up at Jarvis’s 28 former work station. (Doc. 73-1 at 3). He further attested that he packed the computer with 1 information identifying it as Jarvis’s and sent it to Plaintiff’s forensic computer examiner. 2 (Id.). The forensic computer examiner attested that he had been informed that the examined 3 computer was Jarvis’s. (Doc. 67-3 at 3). 4 Plaintiff has further established that the person who inserted the flash drives into 5 Jarvis’s computer was probably Jarvis. While Jarvis argues that other people had access to 6 his computer, (Doc. 70 at 12), and has testified that it “was common practice for different 7 people in the office to use other people’s computers sometimes when necessary,” (Doc. 8 70-1 at 24), this is not enough to overcome Plaintiff’s evidence tending to show that Jarvis 9 inserted the flash drives. First, Plaintiff’s forensic examiner attested that the flash drives 10 were inserted and used while Jarvis’s user profile was logged in to the computer, a 11 conclusion which Jarvis’s forensic examiner did not challenge. (Compare Doc. 67-3 at 4– 12 5, with Doc. 70-1 at 60). Second, although Jarvis could not remember whether he had 13 inserted these particular flash drives on these particular dates, he admitted that he did insert 14 flash drives into his computer at some point while working for Volition. (Doc. 67-2 at 17– 15 18). The Court finds that, even if other people had access to his computer, the person who 16 inserted flash drives into Jarvis’s computer over the course of three days while logged in 17 to Jarvis’s user profile was probably Jarvis. 18 Having come this far, however, the Court can go no further. As discussed, Plaintiff 19 must show that Jarvis had an obligation to preserve the flash drives at the instant he lost or 20 destroyed them. Plaintiff’s problem is that it does not know (and has not shown) when the 21 flash drives were lost or destroyed. (See Doc. 67 at 13). Plaintiff has also not shown how 22 long Jarvis retained the flash drives after he removed them from his computer for the last 23 time on January 13, 2022. (See Docs. 67 at 13; 73 at 11–12). Volition’s former office 24 manager did attest that Jarvis did not give the flash drives to Volition at the end of his 25 employment, and that a search of Volition’s offices did not turn them up. (Doc. 67-1 at 1, 26 5). But Jarvis testified that he did not take any information with him when he left Volition 27 aside from the contents of his own brain. (Doc. 70-1 at 27; see also Doc. 67-2 at 42). Even 28 if Plaintiff’s showing were enough to persuade this Court that Jarvis took the drives with 1 him when he left Volition, Plaintiff has not shown that Jarvis still had the drives when he 2 received a letter warning him of potential litigation on February 10, 2022. (Doc. 67-2 at 3 52–3). 4 Plaintiff’s solution to this problem is to argue that a reasonable person in Jarvis’s 5 position would have known the very moment he inserted the flash drives and copied 6 information onto them that they were potentially relevant to future litigation. (See Doc. 67 7 at 12–14). Specifically, Plaintiff argues that Jarvis should have anticipated future litigation 8 when he inserted the drives because he knew he had signed a nondisclosure agreement with 9 Volition, was already planning to start a competing business, and copied confidential 10 information onto the drives with the intention of misappropriating it. (Doc. 67 at 13). 11 This solution has its own problems. Chief among them is that it requires Plaintiff to 12 prove that Jarvis copied confidential information onto the drives with the intention of using 13 it for his new business. If Jarvis did not copy confidential information onto the drives, or 14 copied confidential information without intending to misappropriate it (or otherwise 15 disclose it), he would have no reason to think that his actions could lead to litigation, and 16 no reason to know the information was relevant to any such litigation—and thus no duty 17 to preserve the drives. 18 It certainly appears that Jarvis copied something from his Volition computer onto 19 the flash drives. Jarvis’s forensic examiner opined that Plaintiff’s evidence does not 20 definitely show that computer files were copied to the flash drives during the relevant 21 period. (Doc. 70-1 at 60). But Plaintiff’s forensic examiner noted that Jarvis accessed files 22 on the drives while they were inserted and that the drives contained folders with names 23 such as “Nick’s PC Backup,” “REEFER ALL,” “Bids – Truckload,” and “DRY VAN – 24 FULL.” (Doc. 67-3 at 4–5). Plaintiff has thus shown that Jarvis probably copied work- 25 related information onto the drives while they were inserted, and possibly even backed up 26 all files from his work computer to one of the drives. 27 Plaintiff has not shown, however, that the information Jarvis copied onto the drives 28 was confidential information that Jarvis intended to misappropriate. First, Plaintiff has not 1 shown that information copied onto the drives was confidential. The only evidence Plaintiff 2 presents on this issue are conclusory statements that GlobalTranz or Volition possessed 3 confidential information that was accessible from Jarvis’s Volition computer. (See Doc. 46 4 at 20–21, 31–32; 67-1 at 3–4). But Plaintiff has not, for example, indicated any specific 5 files on Jarvis’s computer or explained why such files are confidential. And even on this 6 scant record there is clearly a dispute whether at least some of Plaintiff’s allegedly 7 confidential information is really confidential. (See Doc. 70-1 at 48–50). Plaintiff’s thin 8 showing is an insufficient basis on which to decide an issue which is potentially dispositive 9 of this case.3 10 Even if Plaintiff had adequately shown that some of the information accessible from 11 Jarvis’s computer was confidential, Plaintiff admits that it has not shown that the flash 12 drives contained confidential information. (Doc. 73 at 7 (“[Plaintiff] cannot establish at 13 this time that the thumb drives contain trade secret information.”); id. at 10 (“Jarvis states 14 that [Plaintiff] has failed to provide evidence that the thumb drives contain Volition CI. . . . 15 This, of course, is the point of the Motion. Due to Jarvis’ spoliation, [Plaintiff] is prevented 16 from establishing the contents of the thumb drives and showing that the contents contained 17 Volition CI.”)). Nor has Plaintiff adequately shown that Jarvis actually used confidential 18 Volition information at Pinnacle, which would at least indicate that Jarvis obtained such 19 information by some means at some point—and suggest that he may have obtained it via 20 the flash drives. (See Docs. 67; 73). It therefore remains entirely possible that the 21 information Jarvis copied onto the drives was not confidential. 22 Second, Plaintiff has not presented any evidence that, when he inserted the drives, 23 Jarvis intended to use the information at his new business rather than as part of his 24 employment at Volition. The Court is apparently to infer that because Jarvis was seeking 25 partners for his new business when he inserted the thumb drives, (see Doc. 67-2 at 23–24, 26 3 The Court’s prior finding that Plaintiff had given sufficient examples supported by articulated reasoning to show good cause for entry of a protective order is not a finding that 27 any information Plaintiff possesses is or is not confidential. (See Doc. 56 at 5–7; see also Doc. 57 at 9 (“[N]othing in this Order shall be construed to change the burdens of proof or 28 legal standards applicable in disputes regarding whether certain material . . . is confidential . . . .)). 1 27), he must have intended to use any copied information at his new business, (see Doc. 2 73 at 2–3). But Jarvis attested that the folder names on the flash drives, including “RGN” 3 and “double drop,” refer to trailers (removable gooseneck trailers and refrigerated trailers, 4 respectively) which Pinnacle does not use in the ordinary course of its business. (Doc. 70- 5 1 at 34–35). And while Volition’s former office manager attested that it did “not appear 6 that either of [the flash drives] were used in the normal course and scope of Jarvis’s 7 employment with Volition,” she did not explain why Jarvis would not have any legitimate 8 business need to transfer Volition’s information onto a flash drive. Plaintiff has thus not 9 shown that Jarvis probably planned to use the copied information at his new business rather 10 than in the course of his employment at Volition—and a person intending to use 11 confidential information for the permissible business purposes of his employer would not 12 reasonably expect litigation to result. 13 In sum, Plaintiff’s sole argument that Jarvis should have known litigation was 14 possible when he inserted the flash drives is that he copied confidential information onto 15 them. But Plaintiff has admitted that it cannot show that Jarvis really did copy confidential 16 information onto the flash drives.4 Because Plaintiff has not established what information 17 was on the flash drives, Plaintiff has also not established that Jarvis intended to use that 18 information in a manner which could trigger litigation. Plaintiff has thus not met its burden 19 to show that Jarvis was under a duty to preserve the flash drives when they were inserted.5 20 Because this insertion is the only point at which Plaintiff has shown that Jarvis had 21 possession of the drives, Plaintiff has also failed to show that Plaintiff was under a duty to 22 preserve the drives when they were lost. The Court therefore concludes that Plaintiff has 23 failed to show that sanctions are available under Rule 37(e). 24 4 In asking the Court to find that Jarvis copied confidential information without actually 25 demonstrating that he probably did so, Plaintiff is essentially asking the Court to first presume that the information on the flash drives was unfavorable to Jarvis in order to then 26 find that Jarvis had a duty to preserve the flash drives. This puts the cart before the horse. Under Rule 37(e), the Court may not presume lost information was unfavorable to the party 27 that lost it without first making the threshold finding that the party was under a duty to preserve it. See Fed. R. Civ. P. 37(e). 28 5 The Court does not reach the question of whether Jarvis intentionally spoliated the flash drives. 1 Plaintiff makes much of Jarvis’s failure to explicitly deny, in his response to the motion, that he inserted the flash drives, that he had a reasonable belief litigation was 3 || possible when he inserted the flash drives, or that he intentionally spoliated the flash drives. (Doc. 73 at 2, 4, 7, 9). But of course, stating whether he inserted the drives or describing 5 || his state of mind when he did so would be inconsistent with his testimony that he does not 6 || remember when or whether he inserted the drives. And Jarvis did deny “taking any flash 7\| drives with him upon termination.” (Doc. 70 at 14). Moreover, the Court does not draw 8 || any negative inference from Jarvis addressing his response to the question of whether 9|| Plaintiff met its burden to obtain sanctions under the relevant legal standard. 10 The motion will be denied without prejudice. If additional evidence comes to light 11 || that would enable Plaintiff to meet its burden under Rule 37(e), Plaintiff may again raise this issue with the Court.® 13} Ill. CONCLUSION 14 For the foregoing reasons, 15 IT IS ORDERED that Plaintiff's motion for spoliation sanctions (Doc. 67) is 16 || DENIED without prejudice. 17 Dated this Ist day of June, 2023. 18 19 20 James A. Teilborg Senior United States District Judge 22 23 ° Jarvis’s request for oral argument is denied because both parties submitted memoranda 24 discussing the law and facts 1n support of their positions and oral argument will not aid the Court’s decision-making process. Cf. e.g., Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 25 1998); Lake at Las Vegas Investors Grp., Inc. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991). The Court notes that Plaintiff has not requested an evidentiary hearing or suggested that one would be helpful to the Court’s decision-making process. See Gypsum Res., LLC v. Clark County, 2022 WL 16951250, at *3 (D. Nev. Nov. 15, 2022) 27 (citing Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 592 (9th Cir. 1983); Pac. Harbor Cap., Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000)) (“. . . a party 28 seeking an evidentiary hearing for purposes of determining whether to impose sanctions has no due process right to such a hearing so long as the opportunity to brief is provided.”’). -ll-