United States District Court, D. Nevada
ORDER ON MOTION FOR SANCTIONS [ECF NO. 411]
RICHARD F. BOULWARE, II United States District Judge.
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.
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].
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
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].
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.
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].
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
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].
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.
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.
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 ...