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LHF Productions, Inc. v. Koehly

United States District Court, D. Nevada

October 19, 2017

JOHN KOEHLY, et al., Defendants.

          ORDER (DOCKET NO. 81)


         Pending before the Court is a motion for reconsideration and an alternative motion to withdraw admissions filed by Counter-Defendant LHF Productions, Inc. (“LHF”). Docket No. 81. Counter-Claimant Brian Kabala (“Mr. Kabala”) filed a response. Docket No. 85.[1] No reply was filed. The Court finds the motions properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the motions are both DENIED.


         This is a copyright infringement action alleging numerous defendants participated in a BitTorrent swarm involving the downloading of the movie London Has Fallen. See, e.g., Docket No. 7. Mr. Kabala, proceeding pro se, filed counterclaims for a declaration of non-infringement and abuse of process. See Docket No. 22 at 11-12. On July 17, 2017, LHF moved to voluntarily dismiss its claims against Mr. Kabala. Docket No. 70. On July 26, 2017, United States District Judge Jennifer A. Dorsey granted that motion to voluntarily dismiss, but also noted that Mr. Kabala still had counterclaims in the case. Docket No. 72. To that end, Judge Dorsey ordered Mr. Kabala to file a notice indicating whether he still intended to proceed with those counterclaims. Id. On July 27, 2017, Mr. Kabala responded to that order with a notice that he intends to proceed with his counterclaims. Docket No. 73 at 3.

         Concurrently with that notice, on July 27, 2017, Mr. Kabala filed a motion to deem facts admitted based on LHF's failure to provide timely responses to his requests for admission. Docket No. 74. LHF filed a motion to strike on July 28, 2017, Docket No. 75, which was denied as lacking merit on July 31, 2017, Docket No. 76. LHF did not file a response to the motion to deem facts admitted by the applicable deadline. On August 15, 2017, the motion to deem facts admitted was granted as unopposed. Docket No. 80. LHF seeks reconsideration of that order or, alternatively, to be permitted to withdraw its admissions. Docket No. 81.


         Motions for reconsideration are disfavored. Local Rule 59-1(b); see also Koninklijke Philips Elecs. N.V. v. KXD Tech., Inc., 245 F.R.D. 470, 472 (D. Nev. 2007) (“Reconsideration is an extraordinary remedy, to be used sparingly” (citation and internal quotations omitted)). The Local Rules provide the applicable standards in addressing whether the Court should reconsider an interlocutory order, indicating that reconsideration may be appropriate if (1) there is newly discovered evidence that was not available when the original motion or response was filed, (2) the Court committed clear error or the initial decision was manifestly unjust, or (3) there is an intervening change in controlling law. Local Rule 59-1(a).[2] The party seeking reconsideration bears the burden of establishing appropriate grounds for that relief. See ESCO Corp. v. Cashman Equip. Co., 158 F.Supp.3d 1051, 1076 (D. Nev. 2016) (the motion must set forth both (1) a “valid reason” for reconsideration and (2) facts or law of a “strongly convincing nature to persuade the court to reverse its prior decision” (quoting Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003)); see also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (the movant bears the burden of establishing grounds for reconsideration).

         In seeking reconsideration, LHF makes three overarching arguments: (1) that its counsel was confused as to whether a response to Mr. Kabala's motion was required; (2) that the Court lacked discretion to decide Mr. Kabala's motion without certification of a pre-filing conference; and (3) that Mr. Kabala's motion was factually inaccurate. The Court addresses each argument in turn below, and finds that none of them warrants reconsideration of the prior order.

         A. Purported Confusion Regarding Need for a Response

         LHF acknowledges that the Court granted Mr. Kabala's motion to deem facts admitted as unopposed when no response had been filed nearly a week after expiration of the applicable deadline. See Docket No. 81 at 8. Nonetheless, LHF argues that reconsideration is appropriate because its counsel was confused as to whether a response was required. See, e.g., id. at 6. In particular, LHF suggests that its counsel was unclear that an actual “motion” was filed because it “was never docketed as a discovery motion” and, further, that LHF's counsel “was under no clear instruction to file a response” to the motion. See, e.g., id. at 2.[3] The Court interprets this argument as asserting that there would be manifest injustice in allowing the original order to stand. See Local Rule 59-1(a)(2). This argument fails.

         As an initial matter, LHF insinuates that its counsel was confused by the nature of Mr. Kabala's filing and, indeed, whether it was even a “motion” to which a response was required. See, e.g., Docket No. 81 at 2. This insinuation is frivolous. The record is crystal clear that Mr. Kabala filed a motion seeking relief. The document at issue was docketed twice, as it was both a motion seeking relief and a response to an order issued by Judge Dorsey as to whether Mr. Kabala wished to proceed with his counterclaims. See Docket No. 73 (docketed as “RESPONSE to 72 Order”); Docket No. 74 (docketed as “MOTION for Relief”). The document itself was captioned as “Motion and Brief to Deem Facts Admitted and Response to ECF No. 72, ” and thereunder was entitled “MOTION AND BRIEF TO DEEM FACTS ADMITTED AS AGAINST LHF PRODUCTION, INC. FOR FAILURE TO COMPLY WITH FED. R. CIV. PRO. 36.” Docket No. 74 at 1 (emphasis in original). Although one can presume from the face of the filing that it was clear to counsel that Mr. Kabala was filing a motion, counsel himself dispelled any suggestion otherwise because he immediately responded by filing a motion to strike the “discovery motion[].” Docket No. 75 at 1, 3. That motion to strike goes on to identify Mr. Kabala's filing as a “motion” repeatedly. Id. at 1-4. There was no confusion that Mr. Kabala had filed a “motion, ” and LHF's counsel now feigning otherwise is not grounds for reconsideration.

         Notwithstanding its counsel's expressly stated understanding that Mr. Kabala had filed a motion, LHF makes the puzzling contention that its counsel should have been given an instruction to respond or the Court should have issued an order to show cause before granting Mr. Kabala's motion as unopposed. Docket No. 81 at 8. This argument is also frivolous. “[W]e expect an attorney practicing law in federal court to become familiar with and follow rules applicable to practice in this court.” Dela Rosa v. Scottsdale Memorial Health Sys., Inc., 136 F.3d 1241, 1244 (9th Cir. 1998). The Local Rules could not be clearer that responses to motions are due within 14 days, and that the failure to file a response may be deemed consent to the granting of the motion. Local Rule 7-2. The Court is not obliged to inform counsel that he has failed to comply with this basic requirement before granting a motion as unopposed. See Local Rule 7-2(d). Moreover, the docket itself provided a courtesy notification that a response was due in relation to Mr. Kabala's motion and the deadline by which it was due. See Docket No. 74 (docket text: “MOTION for Relief by Counter Claimant Brian Kabala. Responses due by 8/10/2017” (emphasis added)); see also Docket No. 74 (notice of electronic filing emailed to LHF's counsel providing the same courtesy notice). Hence, even though the Court has no duty to instruct an attorney to file a response, the docket actually gave LHF's counsel notice that a response was due. The Court declines to grant LHF's counsel an exception to complying with the basic rules governing practice here.[4]

         Lastly, LHF faults the Court for denying its motion to strike without also identifying for counsel the response deadline to Mr. Kabala's still-pending motion and/or for not “even indicating that a response was necessary.” Docket No. 81 at 5. This argument is also frivolous. LHF filed a factually inaccurate motion to strike, which the Court promptly denied as lacking merit. Docket No. 76.[5] Nothing in the Court's order remotely suggests that a response to the underlying motion was not required or that the deadline for responding to Mr. Kabala's motion was anything other than the default deadline set by the local rules. See id.[6]

         LHF's contention of manifest injustice on this ground is not persuasive.

         B. Meet-and-Confer

         LHF next argues that the Court lacked the authority to grant Mr. Kabala's motion to deem facts admitted because a proper meet-and-confer had not been certified and LHF's counsel has “no recollection” of one occurring. See, e.g., Docket No. 81 at 6-7; Docket No. 81-1 at ¶ 16. Mr. Kabala acknowledges the lack of certification in his motion, but disputes LHF's representation that a pre-filing conference was not conducted. See, e.g., Docket No. 85 at 1 (Mr. Kabala representing unequivocally that he “did confer with LHF regarding every discovery request prior to filing Dkt. 74”); id. at 8 (Mr. Kabala's declaration specifically attesting to telephone discussion regarding second set of requests for admission). LHF argues that the Court is “outright prohibited from considering any motion that fails to include the necessary declaration, ” Docket No. 81 at 7 (citing Local Rule 26-7(c)), and similarly that courts have “no ...

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