Case 2:12-cv-00591-JCM-GWF Document 222 Filed 06/17/14 Page 1 of 6
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF NEVADA
`
`))
`
`TELLER, an individual
`
`) Case No.: 2:12-cv-591-JCM-GWF
`)
`) FINDINGS & RECOMMENDATIONS
`)
`)
`
`))
`
`Plaintiff,
`
`vs.
`
`GERARD DOGGE (p/k/a Gerard Bakardy),
`an individual,
`
`)
`Defendant.
`__________________________________________)
`
`This matter is before the Court on Plaintiff’s Emergency Motion for Case-Dispositive
`
`Sanctions Based on Defendant’s Refusal to Physically Attend Trial (#205), filed on May 28, 2014.
`
`Defendant filed his Ultimate Opposition to Plaintiff’s Multiple Motions (#216) on June 11, 2014.
`
`The Plaintiff filed his Reply (#221) on June 13, 2014.
`
`BACKGROUND
`
`Plaintiff Teller filed this action for copyright infringement against Defendant Gerard Dogge,
`
`a citizen of Belgium. The basis for the action was Dogge’s conduct in posting a video on YouTube
`
`in which Dogge performed Teller’s copyrighted illusion known as “Shadows.” In August 2012, the
`
`court granted Teller’s motion to serve Defendant Dogge by publication. Defendant Dogge
`
`subsequently appeared in the action by filing a written response to Plaintiff’s motion for a
`
`preliminary injunction and by filing his answer to the complaint on October 24, 2012. The court
`
`held that by filing an answer, Dogge waived his defenses to personal jurisdiction and service.
`
`Order (#56), pg. 5. The court also held that even without waiving his defenses, the court has
`
`personal jurisdiction over Dogge in regard to the claims in this lawsuit and that service was proper.
`
`Id., pgs. 5-9.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 222 Filed 06/17/14 Page 2 of 6
`
`Defendant Dogge has filed pleadings and documents in this case by mailing them from his
`
`home in Belgium. The court has permitted Mr. Dogge to appear telephonically at several court
`
`hearings conducted during the course of this lawsuit. Plaintiff deposed Defendant Dogge in
`
`Belgium. To the court’s knowledge, Defendant Dogge has not appeared in person in this district to
`
`participate in this action since it was filed. The court has no information whether Mr. Dogge has
`
`been physically present in the United States at any time since this action was filed.
`
`The court has previously granted discovery motions against Defendant Dogge. This
`
`included an order requiring Defendant Dogge to produce the video posted on YouTube which
`
`Defendant initially claimed he had in his possession, but which he later claimed had been erased
`
`from his computer. See Order (#62). After Defendant Dogge failed to comply with the court’s
`
`discovery order, sanctions were imposed on him in the form of an adverse inference instruction.
`
`Order (#78).
`
`On March 20, 2014, the court granted Teller’s motion for summary judgment against
`
`Defendant Dogge on the issue of liability for copyright infringement. Order (#184). The court
`
`held, however, that Defendant has raised a genuine issue of fact as to whether he willfully infringed
`
`upon Teller’s copyright, and therefore denied summary judgment on the issue of damages for
`
`copyright infringement. The court also denied summary judgment on Plaintiff’s unfair competition
`
`claim. Id. On April 21, 2014, Plaintiff filed an Individual Pretrial Order (#188), in which
`
`Plaintiff’s counsel represented that he had sought Defendant Dogge’s participation in preparing a
`
`joint pretrial order, but that Defendant had refused to participate. Plaintiff’s counsel also filed a
`
`declaration in which he stated that he had received an email letter from Mr. Dogge in which he
`
`stated that he was not willing to come to the United States for trial but wanted to participate by
`
`telephone. Plaintiff’s Individual Pretrial Order, Attachment 1, Tratos Declaration, ¶¶ 6-7.
`
`On April 21, 2014, the district judge entered an order referring this action to the
`
`undersigned magistrate judge to conduct a settlement conference. Order (#189). Given the history
`
`of this case and the fact that Defendant Dogge resides in Belgium, the undersigned scheduled a
`
`telephonic hearing on May 9, 2014 to discuss whether a settlement conference would be feasible.
`
`During that hearing, Plaintiff’s counsel advised the court of Mr. Dogge’s statement that he was not
`
`2
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 222 Filed 06/17/14 Page 3 of 6
`
`willing to attend trial in person. Mr. Dogge advised the undersigned that he did not intend to attend
`
`the trial in person and wished to participate telephonically. The undersigned ordered each side to
`
`submit brief statements in camera regarding their positions on settlement. Each party submitted in
`
`camera statements as directed. Based on those statements, the undersigned determined that a
`
`settlement conference would not be productive. Order (#201).
`
`On May 13, 2014, Plaintiff filed an emergency motion for dispositive sanctions based on
`
`Defendant’s refusal to physically attend trial. Motion (#199). On May 16, 2014, the court denied
`
`Plaintiff’s motion, but stated as follows:
`
`Though the court is not inclined to enter judgment without allowing
`Dogge to have an opportunity to defend himself at trial, case-
`dispositive sanctions may be necessary if Dogge does not comply
`with pretrial disclosure requirements. The court has granted a
`significant amount of leeway to Dogge given his status as a pro se
`litigant, but will not allow his inexperience with the law interfere
`with Teller’s ability to present his case effectively.
`
`The court also admonishes Dogge that he will not be allowed to
`appear at trial telephonically. In order to guarantee fairness in this
`matter, all parties must appear in person.
`
`Order (#200), pgs. 1-2.
`
`The court ordered that within seven days of the order, Defendant Dogge was to disclose to
`
`Plaintiff Teller all witnesses and exhibits he intends to present at trial. The court further ordered
`
`Defendant Dogge to file “within seven days of the entry of this order, an affidavit indicating that he
`
`has made all required pretrial disclosures and addressing his intent to appear in person at trial.” Id.,
`
`pg. 2.
`
`On May 23, 2014, Defendant Dogge filed an opposition to Plaintiff’s emergency motion for
`
`dispositive sanctions in which he requested the court to reconsider Order (#200), as well as Order
`
`(#184) which granted partial summary judgment. Defendant Dogge stated that he has not been
`
`treated fairly during the course of this action and that the granting of partial summary judgment
`
`against him was unfair. Defendant Dogge further stated:
`
`Defendant confirms once more that he will not travel to Vegas for the
`less important part of the entire litigation. . . .
`
`Defendant regrets that the Court does not allow defendant this time to
`appear in Court by phone conference to defend himself and hopes
`
`3
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 222 Filed 06/17/14 Page 4 of 6
`
`that the Court will not neglect defendants answer (#15-#151) with
`multiple exhibits, showing many more persons performing ‘shadows’
`for many years, making big profits and having thousands of views on
`their You-Tube videos, without any complaint of Teller. Defendant
`once again emphasizes that he never performed or sold the illusion at
`issue, not once, and never had thousands of views on his YouTube
`video.
`
`Defendant’s Opposition (#203), pg. 6.
`
`Based on Defendant Dogge’s opposition and his failure to comply with Order (#200) by
`
`serving a list of witnesses and exhibits, Plaintiff renews his motion for case-dispositive sanctions.
`
`DISCUSSION
`
`Rule 16(f) of the Federal Rules of Civil Procedure states that on motion or on its own, the
`
`court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party
`
`or its attorney (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially
`
`unprepared to participate--or does not participate in good faith--in the conference; or (C) fails to
`
`obey a scheduling order or other pretrial order. In this case, Defendant Dogge has not complied
`
`with Order (#200) by serving his list of trial witnesses and exhibits as directed. Further, Defendant
`
`Dogge has made clear that he does not intend to appear in person at trial, notwithstanding the
`
`court’s order that he will not be allowed to appear at trial telephonically.
`
`In Al-Torki v. Kaempen, 78 F.3d 1381, 1384-85 (9th Cir. 1996), the court affirmed the
`
`district court’s order dismissing plaintiff’s case pursuant to Fed.R.Civ.Pro. 41(b) and entering his
`
`default on the defendant’s counterclaim when plaintiff failed to appear for the commencement of
`
`trial. The court stated that a district judge is required to weigh several factors in determining
`
`whether to dismiss a case for want of prosecution. These factors include: (1) the public’s interest
`
`in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of
`
`prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and
`
`(5) the availability of less drastic sanctions. These are the same factors that a court is required to
`
`weigh when considering whether to impose dispositive sanctions under Rule 37(b)(2)(A)(v) or (vi).
`
`See Henry v. Gill Industries, 983 F.2d 943, 948 (9th Cir. 1993).
`
`In affirming the district court’s order, the Ninth Circuit in Al-Torki first concluded that
`
`plaintiff knew and understood that his trial was to commence on a certain date and that the court
`
`4
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 222 Filed 06/17/14 Page 5 of 6
`
`had ordered him to be personally present for pretrial and trial; that he was able to comply with the
`
`court order; that he willfully elected not to comply; and that he failed to appear personally or by
`
`counsel at the time his case was called for trial. The court further stated that the failure to appear
`
`for trial, without excuse, prejudices an adversary and interferes with the court’s docket about as
`
`much as any procedural default can. “The other side is likely to have spent thousands of dollars
`
`getting its lawyers ready to try the case and arranging for witnesses and exhibits to be available. If
`
`trial does not proceed, the money and effort will have been wasted.” 78 F.3d at 1385. The court
`
`also commented on the burden and inconvenience a plaintiff’s unexcused failure to appear for trial
`
`causes to the court, prospective jurors and other litigants. Id. Recently, in Lee v. Los Angeles
`
`Unified School District, --- Fed.Appx. ----, 2014 WL 2211712 (C.A.9 (Cal.)) (unpublished
`
`memorandum decision), the court, citing Al-Torki, affirmed the dismissal of a plaintiff’s action for
`
`want of prosecution where the plaintiff failed to file pretrial documents and appear at a pretrial
`
`conference after plaintiff was warned that his action would be dismissed if he was not ready to go
`
`to trial.
`
`In this case, the court ordered Defendant Dogge to serve his list of trial witnesses and
`
`exhibits on Plaintiff’s counsel which the court is informed he has not done. Defendant Dogge has
`
`been notified of the trial date in this case and that he is required to appear in person at trial and may
`
`not participate in the trial telephonically. Defendant Dogge has expressly informed the Plaintiff
`
`and the court that he does not intend to appear at trial in person. Defendant’s expressed reason for
`
`refusing to attend trial is that he has been unfairly treated by the order partially granting summary
`
`judgment and the remaining issues to be tried are less important. This is not a justifiable reason for
`
`refusing to attend trial. He has not shown that he is unable to attend trial in person on July 7, 2014,
`
`or that his decision not to attend will change at a later date. The fact that that Defendant resides in
`
`a foreign country and has never previously appeared in person at any hearing or proceeding in this
`
`action, also makes it highly unlikely he will change his mind and appear at trial. An order striking
`
`Defendant’s answer and entering his default pursuant to Rules 16(f) and 37(b)(2)(A)(vi) is
`
`therefore warranted.
`
`. . .
`
`5
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`
`Case 2:12-cv-00591-JCM-GWF Document 222 Filed 06/17/14 Page 6 of 6
`
`CONCLUSION
`
`Defendant Gerard Dogge has not complied with the Order (#200) directing him to serve his
`
`list of trial witnesses and exhibits on Plaintiff. Defendant Dogge has made clear that he does not
`
`intend to appear at trial in person on July 7, 2014. He has not provided a legitimate reason for not
`
`attending trial that would justify any continuance of the trial date. Accordingly,
`
`RECOMMENDATION
`
`IT IS HEREBY RECOMMENDED Plaintiff’s Emergency Motion for Case-Dispositive
`
`Sanctions Based on Defendant’s Refusal to Physically Attend Trial (#205) be granted and that
`
`Defendant Gerard Dogge’s answer be stricken and his default entered.
`
`NOTICE
`
`Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be
`
`in writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has
`
`held that the courts of appeal may determine that an appeal has been waived due to the failure to
`
`file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit
`
`has also held that (1) failure to file objections within the specified time and (2) failure to properly
`
`address and brief the objectionable issues waives the right to appeal the District Court’s order
`
`and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153,
`
`1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).
`
`DATED this 17th day of June, 2014.
`
`___________________________________
`GEORGE FOLEY, JR.
`UNITED STATES MAGISTRATE JUDGE
`
`6
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28