Dr. Lokesh Tantuwaya MD Inc. v. JetSuite, Inc. ( 2024 )

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 DR. LOKESH TANTUWAYA MD, Case No.: 19-cv-0049 W (BLM) INC., 14 ORDER (1) ADOPTING REPORT Plaintiff, 15 AND RECOMMENDATION [DOC. v. 41]; (2) GRANTING DEFENDANTS’ 16 MOTION FOR MONETARY AND JETSUITE, INC. and SUPERIOR 17 TERMINATING SANCTIONS [DOC. AIR CHARTER, LLC, 36]; AND (3) AWARDING 18 Defendants MONETARY $2,565.00 AGAINST 19 PLAINTIFF AND PLAINTIFF’S COUNSEL, JAMES McDANEL OF 20 THE LAW OFFICES OF JAMES 21 McDANEL 22 23 24 Pending before the Court is Defendants’ motion for monetary and terminating 25 sanctions (the “Motion” [Doc. 36]). On December 19, 2023, United States Magistrate 26 Judge Barbara L. Major issued a Report and Recommendation (“Report”), recommending 27 the Court (1) grant the Motion and (2) and award monetary sanctions in the amount of 28 $1,140.00, in addition to the $1425.00 in sanctions previously awarded in connection 1 with Defendants’ motion to compel discovery. (Report [Doc. 41] 16:11–28, 17:2–7; MTC 2 Order [Doc. 35] 10:24–26.) The Report also ordered any objections filed no later than 3 January 3, 2024, and any reply filed by January 10, 2024. (Id. at 27:8–10.) To date, no 4 objection has been filed, nor has there been a request for additional time in which to file 5 an objection. 6 For the following reasons, the Court will ADOPT the Report [Doc. 41], GRANT 7 the Motion [Doc. 36], and AWARD $2,565.00 in sanctions against Plaintiff and his 8 attorney, James McDanel of the Law Offices of James McDanel. 9 10 I. DISCUSSION. 11 A. Plaintiff did not object to the Report. 12 A district court’s duties concerning a magistrate judge’s report and 13 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 14 Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are 15 filed, the district court is not required to review the magistrate judge’s report and 16 recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 17 (holding that 28 U.S.C. § 636(b)(1)(C) “makes it clear that the district judge must review 18 the magistrate judge’s finding and recommendations de novo if objection is made, but not 19 otherwise”) (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 20 Ariz. 2003) (concluding that where no objections were filed, the District Court had no 21 obligation to review the magistrate judge’s report). This rule of law is well-established 22 within both the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 23 n.13 (9th Cir. 2005) (“Of course, de novo review of a R & R is only required when an 24 objection is made to the R & R.”) (emphasis added) (citing Reyna-Tapia, 328 F.3d at 25 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) 26 (adopting Report without review because neither party filed objections despite having the 27 opportunity to do so, and holding that, “accordingly, the Court will adopt the Report and 28 1 Recommendation in its entirety.”); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 2 (S.D. Cal. 2004) (Benitez, J.). 3 The deadline for objecting to the Report was January 3, 2024. To date, no 4 objection has been filed, nor has there been a request for additional time in which to file 5 an objection. For this reason, the Report’s recommendation that the Court grant the 6 Motion and award monetary sanctions is merited. 7 8 B. Plaintiff did not oppose the Motion. 9 Civil Local Rule 7.1(f.3.c) provides that “[i]f an opposing party fails to file papers 10 in the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to 11 the granting of that motion or other ruling by the court.” The Ninth Circuit has held that 12 a district court may properly grant a motion to dismiss for failure to respond. See 13 generally Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam) (affirming 14 dismissal for failure to file timely opposition papers where plaintiff had notice of the 15 motion and ample time to respond). 16 Here, Defendants’ motion to dismiss identified a hearing date of December 18, 17 2023. (See Motion [Doc. 36].) Based on this hearing date, Plaintiff’s opposition was due 18 on December 4, 2023. Civ. L.R. 7.1e2. Plaintiff did not file an opposition to the Motion, 19 and there no indication that Plaintiff was not served with the Motion. Additionally, there 20 is no indication Plaintiff attempted to obtain an extension of time to file an opposition. 21 For this additional reason, the Report’s recommendation that the Court grant the Motion 22 and award monetary sanctions is merited. 23 24 C. The Court agrees with the Report’s analysis and conclusion. 25 Based on the Court’s review of the Report, moving papers and docket, it is clear 26 the Report represents a thorough and well-reasoned analysis of the issues presented. The 27 evidence and docket confirm that Plaintiff and his counsel have knowingly, intentionally 28 and willfully failed to comply with court orders, including the September 27, 2023 Order 1 granting Defendants’ motion to compel (MTC Order [Doc. 35]). That order specifically 2 warned that “additional failures to comply with discovery obligations or court orders may 3 result in additional monetary sanctions, evidentiary sanctions, or dismissal of the case.” 4 (MTC Order at 9:25–28.) And as set forth in the Report, “[d]espite the warning and with 5 notice of the potential consequences for failure to comply, Plaintiff failed to participate in 6 discovery, pay sanctions, file any document, respond to the OSC, or appear in court for 7 the OSC.” (Report at 9:14–17.) 8 The evidence and record also confirm that Plaintiff and his counsel have 9 knowingly, intentionally and willfully failed to participate in the discovery process. 10 Despite initially committing to engage in discovery once the stay in the case was vacated, 11 Plaintiff failed to produce documents responsive to Defendants’ document requests or 12 respond to interrogatories. (Report at 10:1–3.) Eventually, Plaintiff’s counsel also 13 stopped responding to Defendants’ attorney’s attempts to resolve the discovery disputes 14 and failed to participate in efforts before the Magistrate Judge to resolve those disputes. 15 (Id. at 10:6–11:19.) In addition to failing to respond to discovery or the discovery- 16 dispute-resolution process, Plaintiff failed to designate any experts or rebuttal experts for 17 Defendants’ designated expert. (Id. at 11:10–12.) In short, Plaintiff has failed to take 18 any steps to prosecute this action. 19 Based on the above facts, the Court agrees with the Report’s conclusion that the 20 Ninth Circuit’s factors for determining whether to grant terminating sanctions support 21 dismissal of this case. See Valley Engineers Inc. v. Electyric Engineering Co., 158 F.3d 22 1051, 1057 (9th Cir. 1998) (identifying “five-part ‘test’ to determine whether a dismissal 23 sanction is just”). Additionally, under Federal Rule of Civil Procedure 37, Defendants 24 are entitled to their reasonable expenses incurred in filing the motion, and the Court 25 agrees with the Report’s finding that Defendants’ attorney’s hourly rate and the amount 26 of time spent on the Motion are reasonable. (See Report at 16:12–20.) 27 28 1 CONCLUSION & ORDER 2 For the reasons set forth above, the Court ADOPTS the Report [Doc. 41], 3 GRANTS the Motion [Doc. 36], and AWARDS a total of $2,565.00 in monetary 4 sanctions against Plaintiff and his attorney, James McDanel of the Law Offices of James 5 ||McDanel, jointly and severally. Based on the foregoing, this case is DISMISSED 6 || WITH PREJUDICE. 7 IT IS SO ORDERED. 8 ||Dated: January 9, 2024 \ 10 Hn. 7 omas J. Whelan ll Unted States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28