United States District Court, D. Nevada
ORDER (DOCKET NO. 81)
J. KOPPE UNITED STATES MAGISTRATE JUDGE
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. 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
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.
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.
MOTION FOR RECONSIDERATION
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). 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).
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.
Purported Confusion Regarding Need for a Response
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. 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.
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.
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.
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.
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.
contention of manifest injustice on this ground is not
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