Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WESTHOFF VERTRIEBSGES MBH, Case No. 22-cv-0938-BAS-SBC 12 Plaintiff, ORDER OVERRULING 13 v. PLAINTIFF’S OBJECTION TO THE MAGISTRATE JUDGE’S $800.00 14 CHRISTOPHER BERG; BLUESKYE SANCTIONS (ECF No. 74) CREATIVE, INC., 15 Defendants. 16 17 18 On October 26, 2023, Magistrate Judge Steve B. Chu entered an $800.00 sanctions 19 order against Plaintiff’s counsel, finding non-compliance with his chamber’s rules and 20 instructions in connection with the submission of a Joint Notice of Discovery Dispute. 21 (ECF No. 73.) Plaintiff now objects to Judge Chu’s sanctions order pursuant to Federal 22 Rule of Civil Procedure 72(a). (ECF No. 74.) The Court finds Plaintiff’s motion suitable 23 for determination on the papers submitted. See Fed. R. Civ. P. 78(b); Civ. L.R. 7.1(d)(1). 24 For the following reasons, the Court OVERRULES Plaintiff’s objection. 25 I. BACKGROUND 26 The sanctions order arose during a period of extensive discovery disputes between 27 the parties. The Joint Notice of Discovery Dispute (“Joint Notice”) at issue concerned 28 1 Plaintiff’s motion to compel an additional day of deposition testimony from Defendant Mr. 2 Berg. (Plaintiff’s Obj. 2:3–4, ECF No. 74; MJ Order at 6, ECF No. 73.) 3 The parties were scheduled to appear before Judge Chu for a discovery hearing on 4 September 8, 2023. (MJ Order at 2.) On September 5, 2023—three days before the 5 hearing—Judge Chu’s chambers rejected the Joint Notice for failure to comply with his 6 Civil Chambers Rule VI. (Id. at 6.) Judge Chu ordered the parties to submit a revised 7 version no later than 5:00 p.m. on September 6, 2023. (Ex. DD, ECF No. 74-32.) 8 On the evening of September 5, Plaintiff’s counsel requested via email that 9 Defendants’ counsel submit their revisions by 1:00 p.m. the following day. (Id.) 10 Defendants’ counsel declined, responding that Plaintiff should lead the revisions as the 11 moving party and that they would need Plaintiff’s draft by 10:00 a.m. on September 6. (Id.) 12 At 11:39 a.m. on September 6, Defendants’ counsel notified Plaintiff’s counsel that 13 they had not yet received Plaintiff’s revisions. (Id.) At approximately 12:42 p.m., Plaintiff’s 14 counsel sent a revised Joint Notice to Defendants’ counsel. (Id.) At around 3:43 p.m., 15 Defendants’ counsel returned a redlined version, adding several pages to the document. 16 (Ex. BB, ECF No. 74-30; Ex. CC, ECF No. 74-31.) In the message accompanying this 17 version, Defendants’ counsel stated: “With the red line changes accepted, and if no other 18 changes are made, you have our authority to sign for me and submit to Chambers. If 19 changes are made, we need to review the document with sufficient time for our further 20 revisions.” (Id.) 21 Plaintiff’s counsel responded with a further edited draft at 3:59 p.m. (MJ Order at 7 22 n.3.) At 4:29 p.m., Defendants’ counsel sent another version of the Joint Notice with a 23 reduced page count that Plaintiff’s counsel did not see before the 5:00 p.m. deadline. (Id.; 24 Lowry Decl. ¶ 12, ECF No. 74-1; Turosky Decl. ¶ 40, ECF No. 74-2.) At around 4:59 p.m., 25 Plaintiff’s counsel filed the 3:43 p.m. version Defendants sent as redlined and exceeding 26 the page limit. (Ex. BB, Ex. CC.) 27 At the September 8, 2023, discovery hearing, Judge Chu indicated at the outset that 28 sanctions were likely warranted given the volume of discovery requests and the parties’ 1 insufficient meet and confer efforts. (MJ Order at 3.) Upon the parties’ request, Judge Chu 2 permitted the parties to confer, during which they promptly resolved several outstanding 3 disputes, including Plaintiff’s motion for another day of Mr. Berg’s deposition. (Id.) 4 Following the hearing, Judge Chu issued a written order addressing the discovery 5 issues. (Id. at 1.) As relevant here, Judge Chu’s order sanctioned Plaintiff’s counsel 6 $800.00 pursuant to Rule 37(b)(2)(C) in connection with Plaintiff’s motion for another day 7 of Mr. Berg’s deposition, notwithstanding that the motion had been mooted by the parties’ 8 resolution. (Id. at 9.) Judge Chu found that Plaintiff’s counsel’s conduct required 9 Defendants’ counsel to spend two additional hours of attorney time that would not 10 otherwise have been necessary. (Id.) 11 Judge Chu imposed the $800.00 sanction on the grounds that Plaintiff’s second 12 attempt filing the Joint Notice failed to comply with his chamber’s rules and his September 13 5 instructions. (Id.) Specifically, Judge Chu found that rather than submitting a revised, 14 compliant Joint Notice, Plaintiff filed a draft that contained red-line edits, exceeded the 15 Court’s page limit, and had not been authorized for submission by Defendants’ counsel. 16 (Id. at 7.) Judge Chu further found that this was not the first instance of non-compliance, 17 noting that a day before the September 8 discovery hearing, Plaintiff’s counsel twice 18 improperly contacted Judge Chu’s chambers by email. (Id. at 6 n. 1.) 19 Before issuing the sanctions order, Judge Chu took into consideration additional 20 submissions from the parties, including Plaintiff’s argument that thirty (30) minutes was 21 insufficient time to meet and confer on Defendants’ 4:29 p.m. draft of the Joint Notice. (Id. 22 at 7–8.) The matter was fully briefed before Judge Chu and both parties were heard through 23 written submissions and in person. (Id. at 8.) 24 Plaintiff objected to Judge Chu’s sanctions order, and Defendants did not respond to 25 the objection. 26 27 28 1 II. LEGAL STANDARD 2 A party who disagrees with a magistrate judge’s non-dispositive pretrial order has 3 fourteen (14) days from service to serve and file an objection with the district court judge.1 4 See Fed. R. Civ. P. 72. The district judge “must consider timely objections and modify or 5 set aside any part of the order that is clearly erroneous or is contrary to law.” Id.; 28 U.S.C. 6 § 636(b)(1)(A). 7 The “clearly erroneous” standard applies to the magistrate judge’s factual findings 8 and discretionary decisions. 28 U.S.C. § 636(b)(1)(A); see Perry v. Schwarzenegger, 268 9 F.R.D. 344, 348 (N.D. Cal. 2010) (“The magistrate’s factual determinations are reviewed 10 for clear error, and the magistrate’s legal conclusions are reviewed to determine whether 11 they are contrary to law.”). Review under clear error is “significantly deferential, requiring 12 a definite and firm conviction that a mistake has been committed.” Concrete Pipe & Prods. 13 of Cal., Inc. v. Constr. Laborers Pension Tr. of S. Cal., 508 U.S. 602, 623 (1993) (citation 14 modified). 15 III. ANALYSIS 16 Here, given the deferential standard for the discretionary decision whether to award 17 sanctions, the Court overrules Plaintiff’s objection. The Court duly considered Plaintiff’s 18 objection, including but not limited to Plaintiff’s arguments that Defendants’ filings have 19 exceeded the page limits several times in the past, that Plaintiff sent Defendants ten emails 20 to meet and confer, that Plaintiff’s redlined filing was submitted in an attempt to pursue 21 the most reasonable course of action, and that Plaintiff’s filing exceeded the page limit to 22 incorporate both sides’ arguments. (See Plaintiff’s Obj.; Lowry Decl. ¶ 6.) Nevertheless, 23 Plaintiff failed to comply with Judge Chu’s chamber’s rules and instructions. (Plaintiff’s 24 Obj. 7:6–11.) 25 Judge Chu had given Plaintiff’s counsel the opportunity to bring its Joint Notice into 26 compliance with his chamber’s rules and in accordance with the specific issues identified. 27 1 Technically, Plaintiff’s objection was untimely, being filed fifteen (15) instead of fourteen (14) 28 1 BB.) Plaintiffs counsel failed to do so. Judge Chu acted within his discretion by 2 || imposing a sanction for violations of the pretrial discovery, local, and chamber’s rules. See 3 || United States v. Gillings, 568 F.2d 1307, 1310 (9th Cir. 1978); see also Van Osten v. Home 4 || Depot, U.S.A., Inc., No. 19CV2106 TWR (BGS), 2021 WL 3471581, at *6 (S.D. Cal. May 5 ||4, 2021) (noting that failure to follow the court’s chamber’s rules is sanctionable conduct). 6 Looking at the uploaded document to the court, Plaintiffs submission was redlined 7 || with edits, exceeded the court’s page limit, and was not authorized for submission by 8 ||defense counsel with the edits unaccepted (Ex. GG, ECF No. 74-35); Plaintiff does not 9 || deny these claims, but instead seeks to place the blame on Defendants. Thus, finding that 10 ||the magistrate judge’s determination lacks mistake, the Court overrules □□□□□□□□□□□ 11 || objection to the sanctions. 12 ||IV. CONCLUSION 13 Because Plaintiff fails to demonstrate clear error, the Court OVERRULES the 14 || Objection (ECF No. 74) to Judge Chu’s October 26, 2023, order (ECF No. 73). If □□□□□□□□□□□ 15 |}counsel has not already done so, the Court ORDERS Plaintiff's counsel to comply with 16 || Judge Chu’s order (ECF No. 73) within fourteen days of the date of this Order. 17 IT IS SO ORDERED. 18 19 || DATED: May 29, 2026 (yi. (Duhark 0 H n. Cynthia Bashant, Chief Judge United States District Court 21 22 23 24 25 26 27 28 a.