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Cohen v. Hansen

United States District Court, D. Nevada

October 1, 2014

BRADLEY STEPHEN COHEN, et al., Plaintiff(s),
v.
ROSS B. HANSEN, et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiffs' objection to Magistrate Judge Leen's May 8, 2014, order excluding evidence of plaintiffs' special damages.[1] (Doc. # 180). Defendants filed a response (doc. # 183) and plaintiffs filed a reply (doc. # 187).

Also before this court is plaintiffs' objection to Magistrate Judge Leen's July 15, 2014, order denying plaintiffs' motion for leave to depose Chris C. Keenan. (Doc. # 192). Defendants filed a response (doc. # 193) and plaintiffs filed a reply (doc. # 194).

I. Background

This action stems from a suit in which plaintiffs asserted numerous state law tort claims. (Doc. #178). Discovery has been contentious. Magistrate Judge Leen has ordered both parties to produce or supplement discovery that they have resisted providing. Plaintiffs have consistently stated, throughout the discovery process, that they are seeking only general and presumed damages. Plaintiffs refused to produce financial information or information regarding specific monetary damages because they claimed they were not alleging actual damages.

On July 23, 2013, the court entered a written order directing plaintiffs to produce documents supporting all of their theories regarding damages. (Doc. #91). The court also directed plaintiffs to provide supplemental written responses to certain discovery requests. Id. The court explained to plaintiffs numerous times that they would be precluded from using any undisclosed evidence of actual damages for any purpose. Again, plaintiffs represented that they did not have, were not alleging, and knew of no actual damages.

On October 30, 2012, defendants filed a motion for summary judgment as to the claims requiring actual damages. Plaintiffs then argued, for the first time, that they suffered actual damages; therefore, summary judgment was not appropriate. (Doc. #135). The court ordered sanctions precluding plaintiffs from claiming or introducing any evidence of actual damages. (Doc. #180).

II. Legal Standard

A district judge "may reconsider any pretrial matter [adjudicated by the magistrate judge]... where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. ยง 636(b)(1)(A); LR IB 3-1(a). The district judge may "affirm, reverse or modify, in whole or in part, the ruling made by the magistrate judge." LR IB 3-1(b). Under the "clearly erroneous" standard, the magistrate judge's ruling must be accepted unless, after a review of the record, the court is "left with the definite and firm conviction that a mistake has been committed." United States v. Silverman, 861 F.2d 571, 576-77 (9th Cir.1998).

III. Discussion

A. Plaintiffs' objection to Magistrate Judge Leen's May 8, 2014, order excluding evidence of plaintiffs' special damages

First, plaintiffs object to Magistrate Judge Leen's May 8, 2014, order. Plaintiffs claim they did not waive their right to seek actual damages and did not act in bad faith. (Doc. #183).

1. Sanctions for a failure to disclose discovery

Federal Rule of Civil Procedure 26(a) requires plaintiffs to provide a "computation of each category of damages claimed" and make documents or other evidentiary material available for inspection and copying. Fed.R.Civ.P. 26(a)(1)(A)(iii). Parties also must "supplement or correct its disclosures or responses... in a timely manner if that party learns in some material respect the disclosure or response is incomplete or incorrect." Fed.R.Civ.P. 26(e)(1). Undisclosed and improperly disclosed information may only be used to supply evidence on a ...


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