Opinion
CIV. NO. 13-00236 LEK-BMK
04-16-2014
CHARLES BARKER III Plaintiff, v. JOSHUA L. GOTTLIEB, JONATHAN DUBOWSKY, DONALD BORNEMAN, CHARLES HALL, SCOTT HARRIS,THE VALUE EXCHANGE ADVISOR, also known as/doing business as TVXA, GEMCO-PACIFIC ENERGY LLC, aka GPE, Defendants.
FINDINGS AND
RECOMMENDATION TO DENY
PLAINTIFF'S MOTION FOR
PERJURY SANCTIONS, DENY
PLAINTIFF'S MOTION TO
COMPEL, AND GRANT
DEFENDANTS' COUNTER
MOTION FOR PROTECTIVE
ORDER.
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S
MOTION FOR PERJURY SANCTIONS, DENY PLAINTIFF'S MOTION
TO COMPEL, AND GRANT DEFENDANTS' COUNTER MOTION
FOR PROTECTIVE ORDER.
Before the Court are Plaintiff Charles Barker III's ("Barker") [71] Motion for Perjury Sanctions Against Defendants and Attorneys for Defendants, Barker's [73] Motion to Compel Production of Documents and to Answer Interrogatories, and Defendants' [76] Counter Motion for Protective Order Staying Discovery. In addition, Defendants also move for an award of fees and costs incurred in defending against both of Barker's Motions. After careful consideration of the Motions and their supporting and opposing memoranda, the Court Finds and Recommends that Barker's Motion for Sanctions and Motion to Compel be DENIED, that Defendants' Motion for Protective Order be GRANTED, and that Defendants' Motion for fees and costs be DENIED.
The Court elects to decide this Motion without a hearing, pursuant to Local Rule 7.2(d).
BACKGROUND
This action arises from Defendants' purported failure to fulfill financing obligations for three proposed business ventures on Hawaii Island: a biomass-to-biofuel facility at the former Hamakua Sugar Mill, the development and marketing of topsoil from the Haina Mill property under the name Kamaaina Earth Products, and the acquisition of the Hamakua Energy Partners power plant. [Judge Leslie E. Kobayashi's Oct. 26, 2013, Order Granting in Part and Denying in Part Defendants' Motion for Judgment on the Pleadings at 3, doc. 44.] The facts of this case are laid out in further detail in Judge Kobayashi's Oct. 26, 2013, Order, and need not be repeated for purposes of the two Motions before the Court,.
Judge Kobayashi's October 26 Order dismissed all of Barker's claims with leave to amend, holding that Barker had failed to state a claim for relief in regard to his federal law claims, and as a non-attorney, lacked standing to pursue state law claims on behalf of a business entity. [Id. at 11-14.] Barker filed an Amended Complaint, and on February 24, 2014, Judge Kobayashi issued an Order that Defendants' Motion to Dismiss Barker's Second Amended Complaint was being taken under advisement. [Doc. 69.] Judge Kobayashi's decision is still pending.
Two days after filing his Amended Complaint, Barker filed his present Motion for Sanctions, and followed soon afterward with a Motion to Compel. Defendants state that in neither case did Barker meet and confer before filing his respective Motions as required by Fed. R. Civ. P. ("FRCP") Rule 37(a)(1).
Barker's Motion for Sanctions alleges that Defendants committed perjury in their FRCP Rule 26 initial disclosure dated February 21, 2014. Specifically, Barker alleges Defendants: 1) impermissibly listed the address of their counsel as their contact address; 2) incorrectly stated that they "have provided" Barker with nine listed documents when the documents were not actually received by mail four days later on February 25, 2014; and 3) falsely disclosed that they "are not aware of any insurance policy that may provide coverage with respect to the claims raised in this action." [Motion, doc. 71 at 2.] Barker requests that the Court fine each Defendant no less than $10,000. Barker's Motion to Compel, which was notably filed well before Defendants' response was due, primarily seeks the production of insurance documents referenced in his motion for Sanctions.
Defendants' argue that Barker's Motions are frivolous, and that it is Barker who should be sanctioned under FRCP 37(a)(5)(B), by requiring him to pay the fees and costs incurred in opposing his Motions. Additionally, Defendants move for a protective order staying further discovery until the Court rules on their pending Motion to Dismiss.
DISCUSSION
Rule 37(a)(1) of the Federal Rules of Civil Procedure requires that a motion to compel include "a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." By extension this rule applies to Motions for Sanctions based on a purported failure to meet discovery and disclosure obligations. See Local Rules of the United States District Court for the District of Hawaii Rule 37.1(a) ("The court will not entertain any motion pursuant to Fed. R. Civ. P. 26 through 37 . . . unless counsel have previously conferred, either in person or by telephone, concerning all disputed issues, in a good faith effort to limit the disputed issues and, if possible, eliminate the necessity for a motion or expedited discovery assistance."). After reviewing the motion, Barker has not demonstrated that the parties have met and conferred regarding the issues in the motion to compel. Barker should be aware of this requirement, since the Court previously denied his prior Motion to Compel Discovery on exactly the same grounds. [Doc. 22.]
As to the Defendants' Motions, the Court finds that an award of fees and costs against pro se Plaintiff Barker is not appropriate at this time. Baker v. Ace Advertisers' Service, Inc., 153 F.R.D. 38, 40 (S.D. NY 1992) (holding that courts may afford special solicitude to pro se litigants when considering the imposition of sanctions.) The Court does, however, find that it would be appropriate to grant Defendants' motion for a Protective Order staying discovery until the Court issues a decision on the pending Motion to Dismiss. See Munoz-Santana v. U.S. I.N.S., 742 F.2d 561, 562 (9th Cir. 1984) (holding the decision to allow or deny discovery is within the court's discretion).
The Motion to Dismiss has been fully briefed and taken under advisement. It is likely that a decision on the Motion will be issued in a relatively short time and therefore a brief stay will not be unduly prejudicial. The costs, if any, of a brief delay are outweighed by the benefits of limiting the unnecessary expense of pursuing possibly fruitless discovery. Moreover, the issues at play in the pending motion to dismiss are questions of law, not factual ones requiring continued discovery for their resolution. Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (upholding district court decision to stay discovery on the grounds that further discovery was not required to address the issues raised by defendants' motion to dismiss).
CONCLUSION
For the foregoing reasons, the Court finds and recommends that Plaintiff's Motion for Sanctions and Motion to Compel be DENIED, that Defendants' Motion for Protective Order be GRANTED, and Defendants' Motion for Fee and Costs be denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 16, 2014
__________
Barry M. Kurren
United States Magistrate Judge
Charles Barker III v. Joshua L. Gottlieb, et al., CIV. NO. 13-236 LEK-BMK, FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR PERJURY SANCTIONS, DENY PLAINTIFF'S MOTION TO COMPEL, AND GRANT DEFENDANTS' COUNTER MOTION FOR PROTECTIVE ORDER.