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REC'D & FILED
2012 DEC 14 PM 3:08
ALAN GLOVER CLERK
BY DEPUTY _________
Matthew D. Francis (6978)
Adam P. McMilen (10678)
WATSON ROUNDS
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
In The First Judicial District Court of the State of Nevada
In and for Carson City
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JED MARGOLIN, an individual, Plaintiff, VS.
OPTIMA TECHNOLOGY CORPORATION, a California corporation, OPTIMA TECHNOLOGY CORPORATION, a Nevada corporation, REZA ZANDIAN aka GOLAMREZA ZANDIANJAZI aka GHOLAM REZA ZANDIAN aka REZA JAZI aka J. REZA JAZI aka G. REZA JAZI aka GHONONREZA ZANDIAN JAZI, an individual, DOE Companies 1-10, DOE Corporations 11-20, and DOE Individuals 21-30, Defendants.
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Case No.: 09OC00579 1B Dept. No.: 1
PLAINTIFF'S MOTION FOR SANCTIONS UNDER NRCP 37
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Pursuant to NRCP 37(d), Plaintiff JED MARGOLIN ("Margolin") moves this Court for an Order striking Defendant REZA ZANDIAN aka GOLAMREZA ZANDIANJAZI aka GHOLAM REZA ZANDIAN aka REZA JAZI aka J. REZA JAZI aka G. REZA JAZI aka GHONONREZA ZANDIAN JAZI's (“Zandian”) General Denial and awarding Margolin his fees and costs incurred in bringing this Motion.
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This Motion is based upon the pleadings and papers on file in this matter, the accompanying Memorandum of Points and Authorities, the Declaration of Adam. P. McMillen Support of Plaintiff s Motion for Sanctions NRCP 37(d) ("McMillen Decl.”), and any requested oral argument.
DATED this 13th day of December, 2012. WATSON ROUNDS
By: _____________________,
Matthew D. Francis
Adam P. McMillen
5371 Kietzke Lane
Reno, NV 89511
Telephone: (775) 324-4100
Facsimile: (775) 333-8171
Attorneys for Plaintiff Jed Margolin
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MEMORANDUM OF POINTS AND AUTHORITIES
A. BACKGROUND
This action arises from Zandian's and the other corporate Defendants' fraudulent assignment of Margolin's patents.
On July 16,2012, Margolin served Zandian with Margolin's First Set of Requests for Admission, First Set of Interrogatories and First Set of Requests for Production of Documents. McMillen Decl., ¶ 2, Exhibits 1 and 2. Pursuant to NRCP 33, 34 and 36, responses to these discovery requests were due on August 20, 2012. Id. Zandian has never provided any responses or documents. Id.
On September 10, 2012, Margolin mailed a meet and confer letter to Zandian demanding that he serve responses and documents to the aforementioned discovery no later than September 17, 2012. McMillen Decl., ¶ 5, Exhibit 4. In the September 10, 2012 letter, Margolin demanded that Zandian "respond, without objection, to the requests for admissions, the requests to produce documents (including the actual production of documents), and the interrogatories no later than September 17, 2012." Exhibit 4. Margolin stated that if Zandian failed to comply with this request. Margolin would file a motion to compel with this Court and seek sanctions. Id. Margolin also stated that since Margolin did not respond to Margolin's First Set of Requests for Admissions, those admissions were (and are) deemed admitted. Exhibit 4, citing Wagner v. Carex Investigations & Sec., Inc., 93 Nev. 627, 630, 572 P.2d. 921, 923 (1977). Despite Margolin’s efforts to meet and confer, Zandian has not served responses or documents pursuant to any of the aforementioned discovery requests, nor has he responded to the September 10, 20121 letter or otherwise contacted Plaintiff's counsel. See supra, Exhibit 4.
Based on these facts, and the authority stated below, Margolin's Motion for Sanctions should be granted in full, and sanctions should be levied against Zandian for his willful noncompliance with the Nevada Rules of Civil Procedure.
B. ARGUMENT
NRCP 37(a)(2)(B) states that if a party fails to answer an interrogatory submitted under NRCP 33, or if a party fails to respond to a request for production submitted under FRCP 34,
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"the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request." Id.
As stated above, Zandian has not served responses or documents in response to Margolin's First Set of Interrogatories to Zandian or Margolin's First Set of Requests for Production to Zandian. See supra Zandian has also not responded to the September 10, 2012 letter requesting that he respond to the written discovery. McMillen Decl., ¶ 5. Therefore, Margolin needs not move to compel responses and may rely upon NRCP Rule 37(d), immediately, to request evidentiary and terminating sanctions for Zandian's failure to respond.
NRCP Rule 37(4)(2) provides that:
If a party ... fails (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subparagraphs (A), (B), and (C) of subdivision (b)(2) of this rule.
NRCP 37(b)(2)(A-C) provides that:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that patty from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
NRCP 37(b)(2) also provides that:
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Margolin"s First' Set of Interrogatories to Zandian and Margolin's First Set of Requests for-Production to Zandian seek information and documents relating to the following crucial
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topics: why Zandian signed and filed an assignment of the patents at issue; who was involved in the fraudulent assignment; who paid for the fraudulent assignment; the licensing activity Zandian engaged in regarding the patents after he filed the fraudulent assignment; all revenues derived from Zandian's activities related to the patents after filing the assignment. See McMillen Decl., Exhibits 1 through 4. All of this information is extremely important to Margolin's liability and damage analysis.
Fundamental notions of fairness and due process require that discovery sanctions be just and that sanctions relate to the specific conduct at issue. GNLV Corp. v. Serv. Control Corp., 111 Nev. 866, 870, 900 P.2d 323, 326 (1995), citing Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990). As discussed above, sanctions may be imposed where there has been willful noncompliance, and the adversary process has been halted by the actions of the unresponsive party. Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 652, 747 P.2d 911; 914 (1987). Reasoned and thoughtful analysis dictates that this Court is justified in using its discretion to enter in an order striking Zandian's General Denial and awarding Margolin its attorneys' fees and costs incurred in bringing this Motion.
First, Zandian acted willfully in failing to respond to the aforementioned discovery requests. Nevada Courts have consistently stated the basis for the imposition of sanctions was the failure to complete discovery. See Havas v. Bank of Nevada, 96 Nev. 567, 571, 613 P.2d 706, 709 (1980); Kelly Broadcasting Co. v. Sovereign Broadcast, Inc., 96 Nev. 188, 192, 606 P.2d 1089. 1992 (1980). Although Margolin's First Set of Interrogatories to Zandian and Margolin's First Set of Requests for Production were served five months ago, Zandian has failed to serve responses or documents. See supra. Furthermore, Zandian has not made any attempt to justify this inexcusable willful neglect, and has not even bothered to contact Margolin's counsel regarding the discovery. See McMillen Decl., ¶¶ 5 and 6.
Second, Margolin is being prejudiced by Zandian's failure to respond to the aforementioned discovery requests, and Margolin should not be forced to suffer further prejudice which would result from lesser sanctions. While Margolin believes that liability is established by Zandian failing to respond to the requests for admissions, Margolin believes that responses to
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the outstanding discovery will further prove the extent of the Defendants' malfeasance and damage, Margolin has already been forced to delay the case because no discovery has been responded to by Margolin. This alone is sufficient prejudice to justify the entering of a default judgment. See Fire Ins. Exch,, 103 Nev. at 651, 747 P.2d at 914.
While Margolin understands and appreciates the nature of the sanctions contained in this Motion, the requested relief is necessitated by Zandian's willful violations of the Nevada Rules of Civil Procedure. Simply put, common law and NRCP 37(d) dictate that Margolin is entitled to an Order striking Zandian's General Denial, and awarding Margolin his attorneys' fees and costs incurred in bringing this Motion. See supra., NRCP 37(d)(2-3), NRCP 37(b)(2)(A-C).
C. CONCLUSION
For all of the foregoing reasons, Jed Margolin requests that his Motion be granted in the manner requested.
AFFIRMATION PURSUANT TO NRS 239B.030
The undersigned does hereby affirm that the preceding document does not contain the social security number of any person.
DATED this 13th day of December, 2012. WATSON ROUNDS
Matthew D. Francis
Adam P. McMillen
5371 Kietzke Lane
Reno, NV 89511
Telephone: (775) 324-4100
Facsimile: (775) 333-8171
Attorneys for Plaintiff Jed Margolin
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CERTIFICATE OF SERVICE
Pursuant to Rule 5(b), Nevada Rules of Civil Procedure, I hereby certify that I am an employee of WATSON ROUNDS, and on this date a true and correct copy of the foregoing document, Plaintiff's Motion for Sanctions Under NRCP 37, will be served on the following by first-class mail through the U.S. Postal Service.
Reza Zandian
8775 Costa Verde Blvd,
San Diego, CA 92122
Reza Zandian
8775 Costa Verde Blvd, Apt. 501
San Diego, CA 92122
Dated: December 14, 2012.
__________________
Nancy Lindsley
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