{ Converted to text using OCR. The PDF is the controlling document. Exhibits are in the PDF. JM}
2014 MAR 13 PM 3:42
REC'D & FILED
ALAN GLOVER CLERK
BY DEPUTY ___________
Matthew D. Francis (6978)
Adam P. McMillen (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
|
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.
|
Case No.: 09OC00579 1B Dept. No.: 1
REPLY IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE REGARDING CONTEMPT |
Plaintiff Jed Margolin submits the following reply arguments in support of Motion for Order to Show Cause Regarding Contempt:
I. Zandian Consented To The Granting Of The Motion For Judgment Debtor Examination Under NRS 21.270
Zandian's failure to file an opposition to the Motion for Judgment Debtor Examination constituted a consent to the granting of the Motion. See FJDCR 15(5) ("a failure of an opposing party to file a memorandum of points and authorities in opposition to any motion within the time permitted shall constitute a consent to the granting of the motion.") (emphasis
-1-
added); see also FJDCR 30 ("If a party or an attorney fails, refuses, or neglects to comply with these rules, the Nevada Rules of Civil Procedure, the District Court Rules, the Supreme Court Rules, or any statutory requirements, the Court may, after notice and an opportunity to be be heard, impose any and all sanctions authorized by statute or rule[.]").
Zandian openly recognizes he did not oppose the Motion for Judgment Debtor Examination and he should have raised the issues he now raises in an opposition to the Motion for Judgment Debtor's Examination, not the Motion for contempt sanctions. See Opposition to Motion for Order to Show Cause Regarding Contempt ("Opposition"), dated 3/3/14, p. 6, n. 9 ("To be fair, the fact that the Motion for Judgment Debtor Examination and to Produce Documents was unopposed by then-counsel for Reza Zandian bears a fair share of the responsibility for the oversight."); see also id, at p. 8, n. 13 ("Again, it must be conceded that it would have been far better to present this position in the context of an opposition to the Motion for Judgment Debtor. Examination and to Produce Documents."). Not only did Zandian fail to oppose the Motion for Judgment Debtor Examination, he willfully failed to comply with the resulting order.
But for Plaintiff's counsel's proactive approach, Zandian would have allowed Plaintiff and the Court go forward with the debtor's examination, knowing full well he was not going to appear for the examination. It was not until Plaintiffs counsel contacted Zandian's counsel that Plaintiff learned, Zandian had no intention of complying with the Court's order. See Motion for Order to Show Cause Regarding Contempt, dated 2/12/14, Exhibit 2.
By failing to oppose the Motion for Judgment Debtor Examination, Zandian waived the arguments he now makes regarding the validity of the order for Zandian to appear in Carson City fora debtor's examination and contempt sanctions are proper for his willful disobedience.
II. Zandian Has Still Not Produced Any Records And Should Be Held In Contempt
Seeking to further excuse himself, Zandian argues he should have been given 30 days to comply with the order to produce records, pursuant to NRCP 34. Zandian also argues there
-2-
was no reason to shorten the time to produce records below the 30 day requirement of NRCP 34.
However, Zandian admits the "Order for Debtor's Examination, insofar as it required the production of documents by Reza Zandian, is sound." See Opposition at 7:15-17; see also Opposition at 8:8-9 ("Of course, this Court has the authority to compel a shorter [time] or allow a longer time than 30 days to produce documents in accordance with NRCP 34."); see also NRCP 26(b)(2) ("By order, the court may alter the limits in these rules"); NRCP 34(b) ("A shorter or longer time may be directed by the court”).
Even though Zandian admits the order to produce the documents was sound and well within the Court's power, Zandian willfully disobeyed the order and did not produce the documents by February 4, 2014. In addition, even if we were to believe Zandian's argument that he needed the standard 30 days to comply with the order, it has been well over 30 days since the order was served on Zandian and Zandian still has not produced any documents pursuant to the order.[1] Zandian has made no attempt to comply with the order. As such, the circumstances warrant a determination that Zandian is in contempt of this Court's order and sanctions should be imposed.
III. NRS 21.270(3) Also Provides Contempt Power
Zandian fails to recognize that NRS 21.270(3) provides authority for contempt sanctions as follows: "A judgment debtor who is regularly served with an order issued pursuant to this section, and who fails to appear at the time and place specified in the order, may be punished for contempt by the judge issuing the order."
As Zandian failed to oppose the Motion, Zandian consented to the granting of the Motion for Judgment Debtor's Examination in Carson City, and the Court certainly had the
_____________________________
[1] Zandian argues that Plaintiff served the notice of entry of the Order for Debtor Examination by regular mail on January 16, 2014. However, Plaintiff also served the notice by email on January 16, 2014. See Exhibit 1.
-3-
power to compel the production of documents and Zandian admits that order is sound. Since Zandian was regularly served with an order to produce documents and appear at a debtor's examination pursuant to NRS 21.270, and Zandian failed to produce documents and appear at the time and place specified in the order, he may be punished for contempt.
IV. The Court Has The Express And Inherent Power To Sanction Zandian
Zandian argues that NRCP 69(a) requires any discovery techniques that are used in aid of execution of the judgment must be used in accordance with the Nevada Rules of Civil Procedure. See Opposition at 7:9-20. As a result, the Court also has the express authority to issue sanctions under the state's discovery rules. Accordingly, "NRCP 37(b)(2) authorizes as discovery sanctions dismissal of a complaint, entry of default judgment, and awards of fees and costs. Generally, NRCP 37 authorizes discovery sanctions only if there has been willful noncompliance with a discovery order of the court." Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990) (citing Fire Insurance Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 913 (1987)).
In addition, courts have inherent equitable powers that permit sanctions for discovery and other litigation abuses not specifically proscribed by statute. Young, 106 Nev. 88, 92, 787 P.2d 777, 779 ("courts have 'inherent equitable powers to dismiss actions or enter default judgments for ... abusive litigation practices"' and "[l]itigants and attorneys alike should be aware that these powers may permit sanctions for discovery and other litigation abuses not specifically proscribed by statute.") (citations omitted); see also Bahena v. Goodyear Tire & Rubber Co., 126 Nev. Adv. Op. 26, 235 P.3d 592, 600 (2010) ("In addition to awarding sanctions pursuant td NRCP 37(b)(2)(C), and based upon its inherent equitable power, the district court may order sanctions under NRCP 37(d). NRCP 37(d) allows for the award of sanctions if a party fails to attend their own deposition or fails to serve answers to interrogatories or fails to respond to requests for production of documents."); see also Motion
-4-
For Order to Show Cause Regarding Contempt, dated 2/12/14, 7:16-8:18 (providing legal authorities regarding Court's authority to issue contempt sanctions).
Under the Court's express and inherent power to govern these proceedings, the Court has the authority and power to sanction Zandian for not responding to the Motion for Judgment Debtor Examination, for not providing actual evidence regarding where Zandian is actually residing, and for willfully disobeying the order granting Plaintiff's Motion for Judgment Debtor Examination and to Produce Documents.
V. It Does Matter Where Zandian Resides
It is not sufficient for Zandian's latest Counsel to say "it does not matter where Mr. Zandian resides, so long as it is not in Carson City, Nevada." See Opposition at p. 3, n. 2. To the contrary, it does matter where Zandian resides. He has failed to provide any evidence to show where Zandian did or does reside. The negative argument is not evidence.
As is well known to this Court, Zandian has, through a string of different attorneys, continuously evaded the Plaintiff and this Court with regards to, among other things, services of process, responding to discovery, responding to motions, and now in execution of the judgment.
Zandian argues he resides in France. He appears to have his own self-serving definition of the word, "reside," which is, "I reside wherever I say I reside." However, there is overwhelming evidence that Zandian is and has been residing in the U.S. at all relevant times. See Opposition to Motion to Set Aside Judgment, dated 1/9/14, 2:1-4:4 and Exhibits 1-12. Zandian has done nothing to dispute the actual evidence provided to this Court.
In addition, Zandian owns property and business interests throughout the state of Nevada. See Opposition to Motion to Dismiss, dated 12/5/11, 11:1-13:3 and Exhibits 5-25. As a result of his extensive property and business interests, it might be well within the Court's
-5-
power to consider Zandian a resident of Carson City, especially since Zandian has purposely evaded the Plaintiff and the Court at every turn.
Further, if Zandian had opposed the Motion for Judgment Debtor Examination and to Produce Documents, he might have argued that he did not reside in Carson City. Then he would have had to say where he was residing (with some credible evidence). If, for example, Zandian was residing in Clark County, the Debtor's Examination could have been scheduled to be held in the Las Vegas office of Watson Rounds. Zandian did not do that. Instead, he is hiding from Plaintiff and from this Court.
VI. Zandian Has Failed To Share His Side To The Story
Zandian dismisses out of hand the factual and procedural background to this matter, as follows:
Although only a select few facts are relevant to the actual issue before the Court, Plaintiffs Motion offers several pages of "background", most of which is obviously designed to engender bad will and disdain for Mr. Zandian. Motion at 3:20 - 7:15. This Opposition will make no effort - because none is called for - to refute material which is immaterial to the question of whether this Court should issue the requested order. Suffice it to say, for now, that there are two sides to this story.
See Opposition at p. 3, n. 1 (emphasis added). The central fact of this case is that Zandian has never denied fraudulently using a Power-of-Attorney in the patent assignment documents he filed with the U.S. Patent Office. Zandian has had many chances to tell his side of the story but has always refused to do so.
Zandian had a chance to tell his side of the story in the case held in U.S. District Court for the District of Arizona (Universal Avionics Systems Corporation v. Optima Technology Group, et al.) where the ownership of the Patents was a major issue. Zandian remained silent in that case.
Zandian had a chance to tell his side of the story in the present case many times. After Zandian was served with the Complaint, Zandian ignored the case and a default judgment was entered against him. Later, John Peter Lee made an appearance for Zandian and moved to dismiss the case, saying that Zandian had not been properly served and that this Court did not
-6-
have jurisdiction over Zandian because he lived in California. He had a chance to tell his side of the story then, but chose not to.
Zandian had a chance to tell his story after he had been served by publication (made necessary because John Peter Lee refused to accept service for Zandian and refused to provide Zandian's address). However, Zandian again moved to dismiss the case where he again said Zandian had not been properly served and that this Court did not have jurisdiction over Zandian. Again, the motion to dismiss was denied. Zandian had a chance to tell his side of the story when he finally did answer the Complaint. However his answer was only a General Denial and did not contain any Affirmative Defenses. Again, he failed to tell his side of the story.
Zandian had a chance to tell his side of the story after John Peter Lee withdrew as counsel when Plaintiff sent the First Set of Requests for Admission, the First Set of Interrogatories, and the First Set of Requests for Production of Documents to Zandian at the address John Peter Lee provided to the Court in the motion to withdraw. One of the reasons for sending Zandian the written discovery was to find out what Zandian's story was. He ignored the discovery requests and did not respond.
The inescapable conclusion is that whatever story Zandian has to tell does not do him any credit. Otherwise he would have told it by now.
VII. CONCLUSION
For all of the foregoing reasons, this Court should grant Plaintiff's Motion for Order to Show Cause Regarding Contempt.
-7-
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 March, 2014.
BY _____________________
Matthew D. Francis (6978)
Adam P. McMillen (10678)
WATSON ROUNDS
5371 Kietzke Lane
Reno, NV 89511
Telephone: 775-324-4100
Facsimile: 775-333-8171
Attorneys for Plaintiff Jed Margolin
-8-
CERTIFICATE OF SERVICE
Pursuant to NRCP 5(b), I certify that I am an employee of Watson Rounds, and that on this date, I deposited for mailing, in a sealed envelope, with first-class postage prepaid, a true and correct copy of the foregoing document, REPLY IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE REGARDING CONTEMPT, addressed as follows:
Jason D. Woodbury
Severin A. Carlson
Kaempfer Crowell
510 West Fourth Street
Carson City, Nevada 89703
Attorneys for Defendant, Reza Zandian
Dated: March 13, 2014
_______________________
Nancy Lindsley
-9-