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Pyankovska v. Abid

United States District Court, D. Nevada

December 5, 2019

LYUDMYLA PYANKOVSKA, Plaintiffs,
v.
SEAN ABID, et al., Defendants.

          ORDER

         Presently 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).

         I. Background

         The 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.

         Defendant 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 dispute. Id.

         Although 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 contents.[1] Id.

         On 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.

         Plaintiff 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).

         On 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).

         Attorney 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.

         At the 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).[2] 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.

         Plaintiff filed the instant motion on May 20, 2019-134 days after the hearing and 14 days after the dispositive motion deadline. (ECF No. 114).

         II. Legal Standard

         The 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).

         The 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).

         III. ...


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