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On Demand Direct Response, LLC v. McCart-Pollak

United States District Court, D. Nevada

August 29, 2019




         I. SUMMARY

         Broadly, this is a dispute about who invented an internet enabled stuffed animal that allowed parents to communicate with their children through the toy. This order resolves several pending motions and mostly adopts two Reports and Recommendations of United States Magistrate Judge George Foley, Jr. (“R&Rs”) relating to Defendant/Third Party Plaintiff Shana Lee McCart-Pollak's (“Pollak”) attempts to collect documents to determine the damages she is entitled to under a previously-awarded default judgment (ECF No. 363), including contempt proceedings against several parties and former parties to this case who have ceased participating, or have refused to provide information to Pollak. (ECF Nos. 428, 434, 452, 456, 459.) As further explained below, the Court will mostly adopt the R&Rs, award Pollak $537, 097.92 in damages under her default judgment against Plaintiffs and Counter Defendants On Demand Direct Response, LLC and On Demand Direct Response III, LLC (collectively, “On Demand”), find On Demand, Jeffery Miller, and Spiral Toys LLC-but not Mark Meyers-in contempt of Court, deny non-party Jay At Play International, Hong Kong Limited and Jay Franco & Sons, Inc.'s (collectively, “Jay Franco”) motion to strike as moot, and deny Pollak's other pending motion for contempt sanctions against InCorp Services, Inc. (“InCorp”) because she should have subpoenaed InCorp.


         A more thorough discussion of the background facts appears in some of the Court's prior orders. (ECF Nos. 191, 215, 275, 406.) The Court refers to its prior orders for those facts. As relevant here, the Court dismissed Pollak's claims against Jay Franco, Spiral Toys, and Mark Meyers. (ECF No. 191.) Mark Meyers was the CEO of the now-defunct Spiral Toys. (ECF No. 434 at 1, 3-4.) The Court awarded Pollak a default judgment against On Demand (ECF No. 363), and terminated On Demand's counsel Jeffery Miller (ECF No. 400) after he was apparently disbarred (ECF No. 397 at 2). Objector InCorp is Spiral Toys' registered agent in Nevada. (ECF No. 461 at 2.)

         The pending motions relate to Pollak's efforts to prove up her damages against On Demand following the Court's entry of default judgment against it, including through subpoenas and contempt proceedings. (ECF No. 363; see also ECF No. 362 at 2 (directing Pollak to submit an affidavit regarding damages).) Pollak specifically had until June 21, 2019 to prove up her damages. (ECF No. 443.) She did so in an affidavit filed May 17, 2019 (the “Affidavit”). (ECF No. 449.) As part of this process, she sought information from Jay Franco, Spiral Toys, Meyers, On Demand, Miller, and InCorp. They did not give Pollak all of the information she asked for. As further described below, Judge Foley recommends various types of contempt findings against On Demand, Miller, Spiral Toys, and Meyers for their failure to respond to Pollak's requests for such information.

         More specifically, in a R&R entered March 25, 2019 (“First R&R”), Judge Foley recommends contempt sanctions against Spiral Toys and that the Court issue an order to show cause as to why Meyers should not be held in contempt. (ECF No. 434.) Pollak subpoenaed Spiral Toys on October 24, 2018, but Spiral Toys never responded or served objections to that subpoena. (Id. at 3.) Judge Foley therefore recommends the Court enter an order “(1) finding Spiral Toys in civil contempt for failing without adequate excuse to obey the subpoena served upon it by McCart-Pollak on October 24, 2018; and (2) ordering Spiral Toys to pay McCart-Pollak's reasonable costs for bringing her motion to compel in the amount of $18.81.” (Id.)

         Pollak subpoenaed Meyers on November 14, 2018, but Pollak contended he did not give Pollak all the information she asked for, and then Meyers failed to respond to a motion to compel Pollak filed. (Id. at 3-4.) Judge Foley instructed Pollak to apply for reimbursement of her costs in bringing her motion to compel. (Id. at 4.) Meyers filed an opposition to Pollak's application for costs, where he argued that he complied with Pollak's subpoena in good faith, producing all responsive documents in his possession, but did not appear at a physical address provided in the subpoena because he feared for his safety. (Id. at 4.) Because Meyers' objections were untimely, but Pollak's subpoena was broad and Meyers represented he acted in good faith, Judge Foley recommends this Court issue an order to show cause why contempt sanctions should not issue against him. (Id. at 4-5.)

         Meyers filed an objection to the First R&R (ECF No. 440), to which Pollak responded (ECF No. 441). Meyers argues in his objection he should not be held in contempt because he provided Pollak all of the information he had in his possession and otherwise attempted to comply with her subpoena in good faith. (Id.) He also asks the Court for a protective order against Pollak, contending that she is harassing him and asked him to appear at a residential address in Los Angeles, which he did not do because he feared for his safety.[1] (Id.) He further refutes Pollak's claim that he destroyed documents relevant to this case. (Id. at 2.) Pollak responds that Meyers' objection should be overruled, as further discussed below. (ECF No. 441.)

         In an R&R issued June 17, 2019 (the “Second R&R”), Judge Foley recommends granting Pollak's motion for further contempt proceedings against On Demand and Miller. (ECF No. 456.) While the Court had previously issued case-dispositive sanctions in the form of the default judgment against On Demand, the Court had also ordered On Demand and Miller to respond to Pollak's previously issued discovery requests, and reimburse Pollak for the attorneys' fees incurred in bringing her initial sanctions motion. (Id. at 1, 3.) They never did. (Id. at 3.) Thus, Judge Foley recommends the Court enter an order finding both On Demand and Miller in civil contempt, and ordering them to pay Pollak's costs in bringing her more recent motion for further contempt proceedings (ECF No. 428). (Id. at 4.)

         There are two other pending motions before the Court. Jay Franco filed a motion to strike the portion of the Affidavit in which Pollak asks the Court to order Jay Franco to pay her $127, 868.32. (ECF No. 452.) Pollak also filed what she styles as a motion to hold InCorp in contempt of Court for noncompliance with the Second R&R. (ECF No. 459.) Pollak asks the Court to force InCorp “to immediately divulge the specific name(s) and contact information of the individual(s) at Spiral Toys, Inc. who is/are ignoring both a subpoena and Court Orders.” (Id. at 4.) She also asks the Court to initiate contempt proceedings against InCorp. (Id.)

         This motion stems from Pollak's attempts to subpoena information from Spiral Toys. As she was having difficulty getting any response from Spiral Toys, she asked InCorp, as Spiral Toys' agent, for better contact information to enable her to successfully subpoena Spiral Toys. (Id. at 2.) InCorp gave her the email address (Id.) But Pollak was unable to get any response from Spiral Toys through this email address. (Id.) Thus, she asked InCorp for the name and contact information of the person associated with the email address. (Id. at 3.) InCorp told Pollak it would not give her this information without a subpoena. (Id.) Meanwhile, though InCorp was not a party to this case, Pollak had also moved the Court to compel InCorp to provide this information. (ECF No. 456 at 3.) In the Second R&R, Judge Foley wrote, “[t]o the extent that Incorp Services, Incorporated has this information, it is directed to provide the name and contact information associated with such email address to McCart-Pollak.” (Id. at 3.) Therefore, Pollak contends that InCorp's refusal to provide her more information about Spiral Toys without a subpoena violates the Second R&R, especially because she sent InCorp a copy of the Second R&R. (ECF No. 459 at 3.) This is also Pollak's basis for asking the Court to hold InCorp in contempt. (Id. at 3-4.) As further described below, InCorp disagrees with Pollak, contending that it is entitled to wait for a subpoena from Pollak before divulging any further information about Spiral Toys. (ECF No. 461.)

         Separately, but culminating during the time period these various motions were being filed, the Court entered several orders that ultimately dismissed certain claims, and granted summary judgment on others, as to Third Party Defendant Kevin Harrington. (ECF Nos. 191, 275, 406, 436.) Pollak filed a notice of appeal stating she was appealing the order granting summary judgment to Harrington (ECF No. 406) and the order denying her motion for reconsideration of that order (ECF No. 436). (ECF No. 444 at 2.) However, Pollak's notice of appeal also states she is appealing the order dismissing several third party defendants and some of her claims against Harrington (ECF No. 191), and related orders. (ECF No. 444 at 2.)


         The Court first addresses its jurisdiction over the pending motions, and then moves on to resolve each of the pending motions, grouped together ...

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