Free Reply - District Court of California - California

Case 3:07-cv-02301-JLS-POR

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GREENBERG TRAURIG, LLP GREGORY F. HURLEY (SBN 126791) MICHAEL CHILLEEN (SBN 210704) 3161 Michelson Drive, Suite 1000 Irvine, California 92612 Telephone: (949) 732-6500 Facsimile: (949) 732-6501 Email: [email protected]; [email protected] Attorneys for Defendant, Ralphs Grocery Company DBA Food 4 Less #780 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA A.J. Oliver, Plaintiff, vs. RALPH'S GROCERY COMPANY dba FOOD 4 LESS #780; CYPRESS CREEK CO., LP dba PTC INVESTMENTS COMPANY, Defendants. CASE NO. 07 CV 2301 JLS POR DEFENDANT RALPHS GROCERY COMPANY'S REPLY IN SUPPORT OF ITS MOTION FOR SANCTIONS UNDER RULE 37(d) [Declaration of Michael J. Chilleen filed concurrently herewith] Date: August 21, 2008 Time: 1:30 p.m. Ctrm: H Magistrate Judge Louisa S. Porter

REPLY IN SUPPORT OF MOTION FOR SANCTIONS
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Case No. 07 CV-2301 JLS POR

Case 3:07-cv-02301-JLS-POR

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INTRODUCTION Before Ralphs filed its moving papers, plaintiff blamed his nonappearance on a

3 turnover in his attorney's legal staff. Now that plaintiff is aware that such circumstances 4 do not excuse his absence and require an award of sanctions, plaintiff has changed his 5 story. Plaintiff now theorizes that Ralphs somehow mistakenly served an extra copy of 6 interrogatories instead of plaintiffs' deposition notice. 7 below, plaintiff's position is untenable 8 9 I. 10 11

As explained in more detail

ARGUMENT PLAINTIFF HAS NOT SHOWN THAT HIS FAILURE TO APPEAR WAS SUBSTANTIALLY JUSTIFIED. Rule 37(d) makes monetary sanctions, including attorney's fees, mandatory unless

12 the party to be sanctioned can show that his failure to appear was "substantially 13 justified." See Fed.R.Civ.P. 37. The rule does not require the failure to appear to be in 14 bad faith or willful, and mere inadvertence requires an award of sanctions. See Hyde & 15 Drath v. Baker, 24 F.3d 1162, 1171 (9th Cir. 1994). 16

In this case, the evidence shows that plaintiff was aware of his scheduled As explained in Ralphs' moving papers, plaintiff affirmatively agreed to

17 deposition.

18 produce responses to Ralphs' written discovery prior to his upcoming deposition. Thus, 19 plaintiff was clearly aware of his deposition date. Furthermore, Ralphs' proof of service 20 shows that plaintiff was served with a deposition notice. 21

Plaintiff's newly-minted theory that Ralphs unknowingly served a second copy of It is based

22 interrogatories instead of plaintiff's deposition notice is pure speculation.

23 solely on Mr. Wedel's allegation that he noticed two copies of interrogatories in 24 reviewing the case file. However, this case file was compiled and packaged by plaintiff's 25 attorneys' staff and then sent to Mr. Wedel by overnight mail, so that he could work from 26 home. (Wedel Decl. ¶ 3.) Ralphs cannot be held responsible for the staff's failure to 27 include plaintiff's deposition notice. Moreover, tellingly, plaintiff initially blamed his 28 failure to appear on staff turnover, and only now, in the face of sanctions has he 1 REPLY IN SUPPORT OF MOTION FOR SANCTIONS
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1 concocted this alternative explanation.

(See Chilleen Decl. In Support Of Ralphs'

2 Motion For Sanctions ¶ 4.) Indeed, plaintiff's counsel has conceded that a complete 3 turnover in staff has caused him to miss numerous deadlines in June -- the same month as 4 plaintiff's deposition -- including the deadline to amend the complaint in this case.
1

(See

5 Plaintiff's Motion To Modify The Scheduling Order And Amend His Complaint, 6 attached as Exhibit "A" to Chilleen Decl. In Support Of Ralphs' Reply.) 7 8

CONCLUSION For the above reasons, Ralphs respectfully requests that its motion be granted in its

9 entirety. 10 11 DATED: August 14, 2008 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiff's counsel's list of events that would purportedly occur upon receipt of plaintiff's deposition notice does not help plaintiff's case. What would happen if plaintiff intended to actually appear at 28 deposition or had plaintiff's counsel's staff not misplaced the deposition notice is of no moment. 2 REPLY IN SUPPORT OF MOTION FOR SANCTIONS Case No. 07 CV-2301 JLS POR
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GREENBERG TRAURIG, LLP

By s/Michael J. Chilleeen Gregory F. Hurley Michael Chilleen Attorneys for Defendant Ralphs Grocery Company, DBA Food 4 Less # 780

Case 3:07-cv-02301-JLS-POR

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PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

I am employed in the aforesaid county, State of California; I am over the age of 18 years and not a party to the within action; my business address is 3161 Michelson Drive, 4 Suite 1000, Irvine, California 92612.
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On the below date, I served: DEFENDANT RALPHS GROCERY 6 COMPANY'S REPLY IN SUPPORT OF ITS MOTION FOR SANCTIONS UNDER RULE 37(d) with the Clerk of the United States District Court for the Southern 7 District, using the CM/ECF System. The Court's CM/ECF System will send an email notification of the foregoing filing to the following parties and counsel of record who are 8 registered with the Court's CM/ECF System:
9 Lynn Hubbard, III 10 Law Offices of Lynn Hubbard 12 Williamsburg Lane 11 Chico, CA 95926 Telephone: (530) 895-3252 12 Fax: (530) 894-8244 13 Attorney for Plaintiff, A.J. Oliver 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PROOF OF SERVICE
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Robert P. Lowell Lowell & Robbin 707 Broadway, Suite 1800 San Diego, CA 92101-5314 Telephone: (619) 236-1142 Fax: (619) 233-0700 Attorney for Defendant, Cypress Creek Co., L.P.

(BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM) In accordance with the electronic filing procedures of this Court, service has been effected on the aforesaid party(s) above, whose counsel of record is a registered participant of CM/ECF, via electronic service through the CM/ECF system. (FEDERAL) I declare under penalty of perjury that the foregoing is true and correct, and that I am employed at the office of a member of the bar of this Court and at whose direction the service was made. Executed on August 14, 2008, at Irvine, California. /s/ Michael Chilleen Signature

Case No. 07 CV-2301 JLS POR