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Harkey v. Select Portfolio Servicing

United States District Court, D. Nevada

July 5, 2017



          RICHARD F. BOULWARE, II United States District Judge.


         Defendants in this case submitted a Joint Motion for Case-Terminating Sanctions [ECF No. 411], on the basis of Plaintiff's repeated non-compliance with orders from this Court. The Court held an initial hearing on the sanctions motion on February 6, 2017, and held a separate evidentiary hearing related to the motion on March 3, 2017. At the evidentiary hearing, the Court granted the Motion for Sanctions [ECF No. 532]. This order incorporates by reference the findings at the February 6 and March 3 hearings, and represents the Court's written ruling on the Motion for Sanctions.


         The Court makes the following factual findings. Plaintiff filed the instant case on February 3, 2014. [ECF No. 1]. At that time, he was represented by Mitchell Posin. Mr. Posin withdrew as counsel on March 26, 2015, on which date the Court granted Mr. Posin's request to stay the case “until further order of this Court to enable Plaintiff Michael Harkey to attempt to retain new counsel.” [ECF No. 233]. In that order, the Court required Plaintiff to “file a status report by May 1, 2015 indicating whether he has retained new counsel or intends to proceed pro se.” [ECF No. 233]. No notice was filed by May 1, 2015. Thomas Safford filed an appearance on behalf of Mr. Harkey on May 6, 2015. [ECF No. 235].

         On May 29, 2015, the Court issued an Order to Show Cause requiring Mr. Harkey to show cause in writing, no later than June 12, 2015, “why he should not be sanctioned, up to and including dismissal of this case, for failing to comply with the Court's Order of March 26, 2015.” [ECF No. 237]. On June 11, 2015, Mr. Stafford responded on behalf of Plaintiff, and contended that his new association with the case caused the delay. The Court did not sanction Harkey at that time.

         On July 13, 2015, Mr. Harkey sought to discharge Mr. Stafford as counsel and filed a motion to stay the case while he attempted to “clear the conflict and again retain Mr. Posin.” [ECF No. 242]. Mr. Posin failed to enter an appearance. On August 4, 2015, the Court held a hearing on the motion and granted the discharge of Mr. Stafford, and allowed Mr. Harkey to proceed pro se. [ECF No. 253]. At that hearing, the Court specifically instructed Mr. Harkey: “What I am also going to say to you is that the Court at this point is not going to, absent some incredibly compelling circumstance, grant further delays related to representation or not. This case will proceed along the schedule that the Court sets whether you're representing yourself or someone else is representing you… the Court is going to hold you to the schedule that is set in this case and not consider any requests for delay or extension as it related to representation.” [ECF No. 295, Transcript, at 19:23-20:10].

         On March 10, 2016, the Court held a status hearing on the subject of discovery in this case. At that hearing, the Court ordered parties to confer within two weeks from March 10, 2016, to schedule Plaintiff's deposition, no later than April 24, 2016. The Court further ordered that all written discovery was to be propounded within two weeks of March 10, 2016, with responses due thirty days from the date of request. At this status conference, the Court directly “caution[ed] Plaintiff that failure to comply with future orders of the Court could result in sanctions, up to and including case-dispositive sanctions such as dismissal of his case.” [ECF No. 379]. Plaintiff indicated that he understood that case-dispositive sanctions could be imposed for failing to comply with discovery orders of the Court or for failure to engage in meaningful discovery.

         On March 23, 2016, Defense counsel jointly sent Plaintiff a notice of deposition for April 14, 2016, and advised Plaintiff that if that date did not work for him, Plaintiff should provide another available date between April 8, 2016 and April 15, 2016. [ECF No. 411-3]. On March 24, 2016, Plaintiff responded, “Your April 14, 2016 date seems agreeable at this point, but I will apprise you with definiteness by Monday, March 28.” [ECF No. 411-4]. Plaintiff provided no further response, and on March 30, 2016, Defense counsel emailed Mr. Harkey to confirm his availability on April 14, 2016. [ECF No. 411-5]. On March 30, 2016, Plaintiff emailed Defense counsel stating, “I am uncertain as to what my incoming counsel is advising Me to do, as he will accompany Me to any deposition, and will not be on the case until Thursday or Friday, at which time I will contact You…”. [ECF No. 411-5].

         On April 1, 2016, having received no confirmation or request for a date change from Plaintiff, Defense counsel advised Plaintiff that the deposition would proceed as noticed on April 14, 2016, and that Plaintiff's counsel's unavailability would not be considered an extraordinary circumstance to warrant rescheduling the deposition. [ECF No. 411-6]. New counsel filed its Notice of Appearance in this case only on May 9, 2016. [ECF No. 402]. Prior to filing this notice, new counsel, Gary Victor Dubin, contacted Defense counsel on April 10, 2016, advising them that he would be representing Mr. Harkey, and that the deposition would need to be rescheduled once he was formally admitted pro hac vice, but not providing possible alternative dates for the deposition.

         Defense counsel had made travel plans to travel to the deposition based on Mr. Harkey's preliminary agreement to the April 14, 2016 date. Defense counsel responded to Mr. Dubin that the deposition would go forward on April 14, 2016, based on this Court's order on August 4, 2015 that no further delays would be permitted based on Mr. Harkey's retention, or not, of counsel. On April 14, 2016, defense counsel appeared for Plaintiff's deposition, but Plaintiff did not appear. On April 27, 2016, Mr. Dubin filed a Motion to Withdraw his petition to practice pro hac vice, and cited a conflict with the client, and this motion was granted on May 2, 2016. [ECF No. 401].

         Mr. Harkey has also been non-responsive to written discovery requests. On March 24, 2016, pursuant to the Court's order, Defendants jointly served requests for admission, interrogatories, and requests for production of documents. Defendants have provided proof of service to Mr. Harkey by both email and mail. The Court finds that Harkey received this correspondence. Plaintiff's responses to the requests were due on April 27, 2016, but no responses were received by any Defendant on April 27, 2016 or thereafter.

         Defendant Michelle Nguyen sent ten individual interrogatories and nine requests for admission, which were also served my email and mail to Plaintiff. The Court finds that the Plaintiff received this correspondence. Plaintiff's responses were due on April 27, 2016, but no responses were received. Defendant Old Republic sent eight individual requests for admissions and two requests for production of documents. These were served by email and mail to Plaintiff. The Court finds that the Plaintiff received this correspondence but did not respond. Plaintiff's responses were due on April 27, 2016, but no responses were received. Defendants Quality Loan Services, Gonzales, and McCarthy served individual Requests for Admission on Plaintiff, by both email and mail. No response was received.

         On May 9, 2016, a notice of appearance on behalf of Plaintiff was filed by Robert J. Kern, and a petition for permission to practice pro hac vice was filed by John William Verant. The petition was granted on May 13, 2016. [ECF No. 405]. Defendants collectively contacted Plaintiff's new counsel, alerting them to the outstanding discovery and deposition issues. Counsel responded that according to Mr. Harkey, he did not receive any written discovery, and that he was never provided with notice of his deposition. Based on the record and the attached exhibits, the Court finds that Harkey did in fact receive both written discovery and the notice of his deposition. Nonetheless, defense counsel provided all of the emails concerning written discovery, as well as the formal ...

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