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Schedler v. Fieldturf USA, Inc.

United States District Court, D. Oregon

October 18, 2018

FIELDTURF USA, INC., et al., Defendants.


          Michael H. Simon United States District Judge.

         On September 11, 2018, U.S. Magistrate Judge Paul Papak[1] issued an Opinion and Order (ECF 118) resolving Plaintiff's Motion for Imposition of Sanctions (ECF 99) and two discovery motions by Plaintiff (ECF 102 and 103). Magistrate Judge Papak denied the sanction of dismissing Defendants' counterclaims because he found the lesser sanction of precluding certain evidence would be sufficient to address the alleged discovery deficiency. Magistrate Judge Papak denied Plaintiff's motion to declare some documents admissible or re-open discovery for a limited purpose and granted in part Plaintiff's motion for redesignation of documents and to compel production of some documents. Plaintiff objects only to the portion of Magistrate Judge Papak's Opinion and Order relating to Plaintiff's motion for sanctions. Because the Court is not reviewing a magistrate's findings and recommendation that the Court must consider in full and either adopt or not, the Court does not consider the portions of Judge Papak's Opinion and Order to which Plaintiff did not object. The Court considers the objected-to portion of the Magistrate Judge's Opinion and Order for clear error.[2]


         A. Review of Magistrate's Opinion on Nondispositive Matters

          Federal law permits a magistrate judge in a civil action “to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, . . . to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (“Nondispositive Matters. When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision.”). When a magistrate judge decides a matter under § 636(b)(1)(A), a district judge may reconsider the magistrate's order if the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (“The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”); LR 72-1 (designating magistrate judges in this district “to conduct all pretrial proceedings authorized by 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72”).

         B. Rule 26

         Rule 26(a)(1)(A)(iii) requires disclosure of a “computation of each category of damages claimed by the disclosing party” and that the disclosing party make available for inspection and copying (or produce) the documents on which each computation is based, unless those documents are privileged or otherwise protected from disclosure. “The computation of each category of damages requires more than the listing of the broad types of damages so as to enable the defendants to understand the contours of their potential exposure and make informed decisions regarding settlement and discovery.” Calvert v. Ellis, 2015 WL 631284, at *2 (D. Nev. Feb. 12, 2015) (quotation marks omitted). Production of documents and making witnesses available is insufficient to comply with this rule. See, Inc. v. Lennar Corp., 2017 WL 3020927, at *4 (W.D. Wash. July 14, 2017) (“Making certain documents available and promising that someone will testify regarding damages is not a ‘computation' and fails to apprise defendants of the extent of their exposure in this case.”).

         Rule 26(e) of the Federal Rules of Civil Procedures provides, in relevant part, that:

A party who has made a disclosure under Rule 26(a)-or who has responded to an interrogatory, request for production, or request for admission-must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

Fed. R. Civ. P. 26(e)(1)(A).

         C. Rule 37(c)(1)

         Rule 37(c)(1) prohibits a party from using at trial, at hearing, or on a motion evidence that properly was not disclosed as required under Rule 26(a) or (e). This sanction is “self-executing” and “automatic, ” and no showing of bad faith or willfulness is required. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001); see also Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008), as amended (Sept. 16, 2008) (“Finally, we reject the notion that the district court was required to make a finding of willfulness or bad faith to exclude the damages evidence. To the contrary, the portion of Rule 37 relied on by the district court has been described as ‘a self-executing, automatic sanction to provide a strong inducement for disclosure of material.'” (quoting Yeti, 259 F.3d at 1106)). “The only exceptions to Rule 37(c)(1)'s exclusion sanction apply if the failure to disclose is substantially justified or harmless.” Goodman v. Staples The Office Superstore, 644 F.3d 817, 827 (9th Cir. 2011). Rule 37(c)(1) also permits additional sanctions, including striking pleadings and dismissing claims or counterclaims, by expressly incorporating the sanctions of Rule 37(b)(2)(A).

         The Ninth Circuit has set out five factors that a court must weigh when considering the harsh sanction of dismissal. These factors are: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). Dismissal is proper when “at least four factors support dismissal” or if “three factors strongly support dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)).


         On April 7, 2016, Defendants provided their initial disclosures to Plaintiff under Rule 26(a). Under Section III, ...

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