United States District Court, D. Nevada
before the court is pro se plaintiff Lyudmyla
Pyankovska's (“plaintiff”) motion to strike
defendant's answer and for entry of default judgment.
(ECF No. 114). Defendant Sean Abid filed a response (ECF No.
115), to which plaintiff replied (ECF No. 117).
instant action arises from an ongoing custody dispute between
ex-spouses. In January 2015, defendant placed a recording
device in his minor son's backpack. (ECF No. 114-2 at 3).
Defendant's son took the backpack with him every time he
went to plaintiff's house. (ECF No. 81 at 3). Defendant
used the covert recording device to intercept and review
conversations between his son, plaintiff, and others.
Id. These conversations took place in
plaintiff's home and in her vehicle. Id.
admitted that he destroyed and/or altered portions of the
recording, destroyed the original recordings, and destroyed
both the computer and recording device that had stored the
original recordings. Id. at 4; see also
(ECF Nos. 114-2 at 6-9; 114-3 at 12-19). Defendant used the
contents of the edited recording in support of a motion
requesting the court order him full custody over the
parties' minor son. (ECF No. 81 at 3). Defendant provided
the edited recording to Dr. Stephanie Holland, who conducted
a court-ordered child interview in the couples' custody
the recording was not allowed into evidence in the custody
dispute, the Eighth Judicial District Court nonetheless
allowed it as a basis for the testimony and report of Dr.
Stephanie Holland. (ECF No. 81 at 5). The state court
admitted Dr. Holland's report-which included a transcript
of the recording-and allowed her to testify to its
March 1, 2016, the state court granted defendant primary
physical custody of the couple's son. Id. at 6.
The state court's order was predicated on Dr.
Holland's testimony and report. Id.
filed the instant action on December 20, 2016. (ECF No. 1).
On June 3, 2018, plaintiff filed her first amended complaint,
alleging a violation of 18 U.S.C. § 2510 et seq.,
violation of Nevada Revised Statute (“NRS”)
§ 200.650, intrusion upon seclusion, public disclosure
of private facts, false light, breach of contract,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. (ECF No. 81).
August 24, 2018, plaintiff served defendant with
interrogatories, requests for production, and requests for
admission. (ECF No. 114 at 4). Defendant responded to
plaintiff's requests on September 25, 2018, but
“failed to provide any meaningful response”
thereto. Id. at 4-5. Plaintiff filed several
motions, including a motion to compel, in late October 2018.
Id. at 5; see also (ECF No. 103).
Alex Ghibaudo appeared on defendant's behalf on December
20, 2018. (ECF No. 108). The court ordered defendant to file
responses to plaintiff's pending motions by January 22,
2019, and set a motion hearing for February 5, 2019. (ECF No.
111). Despite being represented by counsel and the extension,
defendant did not file a response to plaintiff's renewed
motion for protective order, motion to compel, or motion for
extension of discovery.
hearing on plaintiff's motions, the court granted
plaintiff's protective order. (ECF No. 112). Notably,
however, defendant had posted the transcripts of his
recording on the “NEVADA COURT WATCHERS” Facebook
page in May 2019. (ECF No. 114-1). Regarding the ongoing
discovery dispute between the parties, defendant's
attorney represented to the court as follows:
[Y]our Honor, I believe [plaintiff] has a motion to exten[d]
time or extend discovery on as well. I don't oppose that,
I was talking to her prior to the hearing, to the extension
for all deadlines since I've been on the case. I know
that discovery that Mr. Abid has answered is probably
insufficient and probably have to revise it and update it and
get it out to her in an appropriate way, objections and all.
So if the [c]ourt is still going to hear that, I have no
opposition to the motion.
(ECF No. 117-2 at 10). The court gave defendant an additional
60 days to complete discovery, 90 days to file any
dispositive motions, and 120 days to file a joint pretrial
order. Id. at 11.
filed the instant motion on May 20, 2019-134 days after the
hearing and 14 days after the dispositive motion deadline.
(ECF No. 114).
court may sanction a party who fails to comply with its
discovery obligations pursuant to Federal Rule of Civil
Procedure 37. Fed.R.Civ.P. 37. When determining such
sanctions, the court weighs five factors: “(1) the
public's interest in the expeditious resolution of
litigation; (2) the court's need to manage its dockets;
(3) the risk of prejudice to the party seeking sanctions; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
sanctions.” Leon v. IDX Sys. Corp., 464 F.3d
951, 959 (9th Cir. 2006); see also Holmquist v. Exotic
Cars at Caesars Palace, LLC, No. 2:07-cv-0298-RLH-GWF,
2008 WL 4491551 at *6 (D. Nev. Sept. 29, 2008).
court need not make explicit findings regarding each factor.
Henry v. Gill Industries, 938 F.2d 943, 948 (9th
Cir. 1993) (citation omitted). However, the key factors are
prejudice to the moving party and the availability of lesser
sanctions. Id. Moreover, sanctions must be
reasonably related to the subject of discovery and “are
appropriate only in extreme circumstances” and where
the failure to appear is due to willfulness, bad faith, or
fault of the party. Fair Housing of Marin v. Combs,
285 F.3d 899, 905 (9th Cir.), cert. denied, 537 U.S.
1018, 123 S.Ct. 536, 154 L.Ed.2d 425 (2002) (citations and
internal quotations omitted); Desert Palace, Inc. v.
Michael, No. 2:16-cv-00462-JAD-GWF, 2018 WL 4205026 at
*2 (D. Nev. Sept. 4, 2018) (citation omitted).