American Board of Internal Med v. Bradley Mittman

FILED
NOT FOR PUBLICATION OCT 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AMERICAN BOARD OF INTERNAL No. 10-56981
MEDICINE,
D.C. No. 8:08-cv-00929-AG-MLG
Plaintiff - Appellee,
v. MEMORANDUM *
BRADLEY D. MITTMAN, M.D., DBA
Frontrunners Board Review, AKA
Frontrunners Publishing,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted October 15, 2013 **
Before: FISHER, GOULD and BYBEE, Circuit Judges.
Bradley D. Mittman, M.D., DBA Frontrunners Board Review, AKA
Frontrunners Publishing, appeals pro se from the district court’s default judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
in the American Board of Internal Medicine’s (“ABIM”) action alleging violations
of the Copyright Act and state law. We have jurisdiction under 28 U.S.C. § 1291.
We review for an abuse of discretion. Patelco Credit Union v. Sahni, 262 F.3d
897, 912-13 (9th Cir. 2001). We affirm.
The district court did not abuse its discretion in entering default judgment as
a sanction for Mittman’s repeated failure to comply with his discovery obligations.
See Fed. R. Civ. P. 37(b)(2)(A)(vi) (district court may enter default judgment as a
sanction for failure to comply with a discovery order); Dreith v. Nu Image, Inc.,
648 F.3d 779, 788 (9th Cir. 2011) (setting forth factors that a district court must
consider before imposing the sanction of default).
The district court did not abuse its discretion in awarding attorney’s fees in
connection with ABIM’s motions to compel because Mittman’s nondisclosures in
response to discovery requests were not substantially justified. See Fed. R. Civ. P.
37(a)(5)(A) (district court must require the party whose conduct necessitated a
successful motion to compel to pay reasonable expenses, including attorney’s fees,
unless the party’s nondisclosure was substantially justified).
The district court properly dismissed Mittman’s counterclaim as time-barred
because Mittman filed it after the statute of limitations had run. See Lukovsky v.
City & County of San Francisco, 535 F.3d 1044, 1047 (9th Cir. 2008) (reviewing
2 10-56981
de novo); Pace Indus., Inc. v. Three Phoenix Co., 813 F.2d 234, 236, 238 (9th Cir.
1987) (four-year statute of limitations for Sherman Antitrust Act claims; only a
“new and independent act” that inflicts “new and accumulating injury” will restart
the limitations period).
The district court did not abuse its discretion in denying Mittman’s motion
for reconsideration because Mittman provided no new evidence or argument
supporting the motion. See Sch. Dist. No. 1J, Multnomah Cnty, Or. v. ACandS,
Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (setting forth standard of review and
grounds for granting a motion for reconsideration).
Mittman’s contention that the district court failed to consider his arguments
and filings is unpersuasive.
AFFIRMED.
3 10-56981