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Lasko v. American Board of Surgery

United States District Court, District of Nevada

January 12, 2015

KEITH ALAN LASKO, Plaintiffs,
v.
AMERICAN BOARD OF SURGERY, et al., Defendants. Nos. 183, 184

ORDER

NANCY J. KOPPE United States Magistrate Judge

Pending before the Court is Defendant American Board of Internal Medicine’s (“ABIM) Motion to Strike Plaintiff’s Two Unauthorized Supplemental Responses and Motion for Sanctions. Docket Nos. 183 and 184.[1] Defendant asks the Court to strike the documents at Docket Nos. 178 and 182 as unauthorized supplemental responses, and to sanction Plaintiff for continuing to violate Court orders. The Court has considered Defendant’s motions and Plaintiff’s Response. Docket Nos. 183, 184, 185. No Reply was filed. See Docket. The Court finds this motion appropriately resolved without oral argument. Local Rule 78-2.

I. BACKGROUND

On October 20, 2014, Defendant filed a Motion to Dismiss Keith Alan Lasko’s Second Amended Complaint (“Motion to Dismiss”). Docket No. 168. On October 24, 2014, Plaintiff filed a response to Defendant’s motion and, on November 3, 2014, Defendant filed a reply to Plaintiff’s response. Docket Nos. 171, 177. Thereafter, on November 5, 2014, Plaintiff filed a second response to Defendant’s motion. Docket No. 178.[2] Further, on November 17, 2014, Plaintiff filed yet another response to Defendant’s motion. Docket No. 182.[3]

Defendant seeks to strike Plaintiff’s supplemental responses on the grounds that they are untimely and improper under the Federal Rules. Docket No. 183.

II. DISCUSSION

A. Striking of Filings

The docket entry for Defendant’s Motion to Dismiss clearly states: “Responses due by 11/6/2014.” Docket No. 168. Plaintiff complied with this deadline by filing his response on October 24, 2014. Docket No. 171. That docket entry clearly states: “Replies due by 11/3/2014.” Id. Defendant complied with this deadline by filing its reply on November 3, 2014. Docket No. 177. The deadlines set on the docket comply with the Court’s Local Rules regarding the timing for filing responses and replies to motions. LR 7-2. Therefore, if Plaintiff intended the filings at Docket Nos. 178 and 182 to be supplemental responses to Defendant’s motion, his responses were untimely.

Further, if Plaintiff intended his filings at Docket Nos. 178 and 182 to be surreplies to Defendant’s reply, they are procedurally improper. As the Court has explained to Plaintiff in more than one Order, because Defendant did not raise any new issues in its reply to the Motion to Dismiss, and because Plaintiff did not request or obtain leave of court, Plaintiff is not permitted to file a surreply.

[I]f Plaintiff intended for his second response to be a surreply, it is also improper. Local Rule 7–2(a)–(c) allows a motion, a response and a reply. No provision is made for the filing of a surreply. “A surreply may only be filed by leave of court, and only to address new matters raised in a reply to which a party would otherwise be unable to respond.Spartalian v. Citibank, N.A., 2013 WL 593350, at *2 (D. Nev. Feb. 13, 2013) (citing Kanvick v. City of Reno, 2008 WL 873085, at *n.1 (D.Nev. March 27, 2008)(emphasis in original)). Here, Plaintiff did not request leave to file a surreply nor are there new matters raised in the reply to which Plaintiff would otherwise be unable to respond. Accordingly, even if Plaintiff intended his second response to be a surreply, it is improper.

Docket No. 60, at 2; Docket No. 72, at 3. See also Docket No. 107, at 4.

Plaintiff’s surreplies, then, are procedurally improper. Accordingly, they shall be stricken.

B. Sanctions

Defendant asks the Court to impose sanctions for Plaintiff’s continued violation of the Court’s Orders and the applicable rules. Docket No. 184, at 3-5.

United States District Judge Jennifer A. Dorsey and the undersigned have both issued orders in the instant case informing Plaintiff that he may not file unauthorized surreplies or untimely supplemental responses to motions. See, e.g., Docket No. 107, at 4 (“This is now the third order explaining to Plaintiff that he may not continue to file documents rehashing the matters that are already fully briefed...”). See also Docket Nos. 60, 72, 163. Additionally, both Judge Dorsey and the undersigned have repeatedly warned Plaintiff that he will be sanctioned if his conduct continued. See Docket Nos. 72, at 3 (“Further, the Court warns Plaintiff that failure to comply with this Court’s Orders may result in sanctions pursuant to Federal Rule of Civil Procedure 16(f) and Local Rule IA 4-1”); 107, at 4 (“Lasko is again cautioned that should he persist in further filings that violation this Court’s orders, he will be sanctioned pursuant to Federal Rule of Civil Procedure 16(f) and the broad docket-management powers of this Court”); Docket No. 163, at 33 (“Sanctions will follow if Lasko continues to disregard the court’s orders and, whether in an amended complaint or in motions, if he persists in frivolous filings that flout the rules and reargue points he has already argued -unsuccessfully - many times”).

Despite these warnings, Plaintiff has continued to violate the Court’s orders and the Local Rules by filing procedurally incorrect documents. The Court, therefore, concludes that its warnings did not have their desired deterrent effect.[4]

Defendant asks the Court to impose sanctions in the form of dismissal of the instant action, as well as the attorney fees it incurred as a result of filing the instant motion. Docket No. 184, at 4-5.

Federal Rule 16(f) requires parties to comply with pretrial orders and provides that the Court may order any "just" sanctions, including those outlined in Rule 37(b)(2)(A)(ii)-(vii), for non-compliance. Wilson v. KRD Trucking W., 2013 WL 836995 (D. Nev. Mar. 6, 2013). "[T]he rule is broadly remedial and its purpose is to encourage forceful judicial management." Id.; quoting Sherman v. United States, 801 F.2d 1133, 1135 (9th Cir.1986). The rule also makes clear that "concerns about burdens on the court are to receive no less attention than concerns about burdens on opposing parties." Id.; quoting Matter of Baker, 744 F.2d 1438, 1441 (10th Cir.1984)(en banc). Whether the party and/or its counsel disobeyed the court order intentionally is impertinent; sanctions may be imposed when the parties and/or their counsel disobey a court order. See Lucas Auto. Eng'g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001). Similarly, this Court's Local Rules also provide the Court with authority to impose "any and all appropriate sanctions on an attorney ... who, without just cause ... [f]ails to comply with any order of this Court." LR IA 4–1.

Here, Plaintiff clearly violated numerous Court orders, and continued to file procedurally improper documents. Therefore, the Court agrees with Defendant that sanctions are warranted. The Court may award any “just” sanctions under Fed.R.Civ.P. 16(f) and “any and all appropriate” sanctions under LR IA 4–1. In determining the appropriate sanction, the Court notes that a primary objective of Fed.R.Civ.P. 16(f) is the deterrence of conduct that unnecessarily consumes the Court's time and resources that could have been more productively utilized by litigants willing to follow the Court's procedures. The Court also considers the resources wasted by the parties due to their violations of the Court’s orders. See, e.g., Fed.R.Civ.P. 16(f)(2). . . . .

In determining the appropriate sanction, the Court finds that dismissal of the instant matter is too harsh a remedy as an initial sanction, and therefore denies that portion of Defendant’s motion. Instead, pursuant to Fed.R.Civ.P. 16(f) and LR IA 4-1, the Court finds that payment of Defendant’s attorneys’ fees and costs for filing the motion at Docket No. 183 is an appropriate sanction to deter further conduct. See Fed.R.Civ.P. 16(f).

Defendant’s attorneys shall submit a declaration of their fees and costs incurred in relation to the motion at Docket No. 183, no later than January 16, 2015. Plaintiff may file any objections to the amount of fees and costs sought by Defendant and its counsel, no later than January 26, 2015.

III. CONCLUSION

Based on the foregoing, and good cause appearing therefore,

IT IS HEREBY ORDERED that Defendant’s Motion to Strike, Docket No. 183, is GRANTED.

IT IS FURTHER ORDERED that the documents at Docket Nos. 178 and 182 are STRICKEN.

IT IS FURTHER ORDERED that Defendant’s Motion for Sanctions, Docket No. 184, is GRANTED in part and DENIED in part.

IT IS FURTHER ORDERED that Defendant’s attorneys shall submit a declaration of their fees and costs incurred in relation to the motion at Docket No. 183, no later than January 16, 2015. Plaintiff may file any objections to the amount of fees and costs sought by Defendant and its counsel, no later than January 26, 2015.


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