DEFENDANT’S OPPOSITION TO MOTION FOR SANCTIONS

February 5, 2023

Andre Slaughter

40 Via Verso Laga

Henderson, Nevada 89011

702-236-0430

andreslaughter226@gmail.com

 

Plaintiff pro se 

EIGHTH JUDICIAL DISTRICT COURT

CLARK COUNTY, NEVADA

DARIA LAGOVSKA, an individual,

                      Plaintiff,

vs.

ANDRE SLAUGHTER, an individual; DOES I through X; and ROES Corporations I through X.

                    Defendants

Case No.:  A-20-814007-C


DEFENDANT’S OPPOSITION TO MOTION FOR SANCTIONS

 

COMES NOW, Defendant ANDRE SLAUGHTER (“Defendant”), pro se, against Plaintiff DARIA LAGOVSKA (“Plaintiff”), and files this Opposition to Plaintiff’s Motion for Sanctions. For the reasons that follow, this Court must deny the Plaintiff’s Motion for Sanctions (“Plaintiff’s Motion”).

 

INTRODUCTION

On or about On April 22, 2020, Plaintiff filed a Complaint against Defendant alleging inter alia, that Defendant committed Intentional Tort originating from the assault and battery of Plaintiff by Defendant. 

On or about September 14, 2020, Defendant, by and through counsel, filed his Answer denying the allegations claimed against him, and asserting his affirmative Defenses.

Contrary to Plaintiff’s assertions, Defendant through Defendant’s counsel, responded and/or attempted to respond to Plaintiff’s correspondences. For instance, on or about September 14, 2020, Defendant’s counsel responded to Plaintiff by filing Defendant’s answer. Also, on or about February 24, 2021, Defendant appeared for the Rule 16 conference.

Consequently, Plaintiff filed Plaintiff’s Motion for Sanctions against Defendant. 

ARGUMENTS

Rule 37 sanctions may only be imposed where there has been willful noncompliance with the Court’s order. Exch. v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 913 (1987).

Rule 37 Sanctions are also known as “civil death penalty”. See Retta A. Miller & Kimberly O’D. Thompson, “Death Penalty” Sanctions: When to Get Them and How to Keep Them, 46 BAYLOR L. REV. 737, 738 (1994); Sherman Joyce, The Emerging Business Threat of Civil ‘Death Penalty’ Sanctions, LEGAL OPINION LETTER (Wash. Legal Found., D.C.), Sept. 10, 2009, at 1, http://www.wlf.org/publishing/publication_detail.asp?id=2102. It is called a civil death penalty because the sanctioned party loses its constitutional right to defend itself. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 850 (Tex. 1992). A court invokes the civil death penalty by striking a party’s pleadings for discovery abuses, thereby quashing any defense that party may have regarding the merits of its underlying claims. See Miller & Thompson, supra note 3, at 739–41. 

Rule 37 sanctions are granted in the court’s discretion. Accordingly, if court determines that a party’s actions warrant discovery sanctions, the decision will not be reversed unless the court abused its discretion. Kelly Broad. Co. v. Sovereign Broad., Inc., 606 P.2d 1089, 1092 (Nev. 1980)

The civil death penalty implicates due process rights because the sanction acts as an adjudication of a party’s claims based on the party’s conduct during discovery and not the merits of the party’s claims. See Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 591 (9th Cir. 1983). Accordingly, discovery sanctions inherently implicate due process rights because such sanctions require trial courts to balance the conflicting policies of preventing unnecessary delay and deciding cases on their merits. Edgar v. Slaughter, 548 F.2d 770, 772 (8th Cir. 1977). The Court in Edgar said thus: 

 

Prior to dismissal or entering a default judgment, fundamental fairness should require a district court to enter an order to show cause and hold a hearing, if deemed necessary, to determine whether assessment of costs and attorney fees or even an attorney’s citation for contempt would be a more just and effective sanction. Dismissal and entry of a default judgment should be the rare judicial act. 

 

Edgar, 548 F.2d 770, 773 (8th Cir. 1977). 

 

It follows; in determining a Motion for Discovery Sanctions, a somewhat heightened standard of review should apply to protect the non-moving party’s fundamental right to due process. In Young v. Johnny Ribeiro Building, Inc., 787 P.2d at 781, the Nevada Supreme Court listed factors to assist judges in carrying out the heightened standard of review. The Court held that every discovery sanction resulting in dismissal must “be supported by an express, careful and preferably written explanation of the court’s analysis of the pertinent factors.” Id, 787 P.2d at 780. The non-exhaustive factors included: 1) the degree of willfulness of the offending party; 2) the extent to which the non-offending party would be prejudiced by a lesser sanction; 3) the severity of the sanction of dismissal relative to the severity of the discovery abuse; 4) whether any evidence has been irreparably lost; 5) the feasibility and fairness of alternative, less severe sanctions, such as an order deeming facts relating to improperly withheld or destroyed evidence to be admitted by the offending party; 6) the policy favoring adjudication on the merits; 7) whether sanctions unfairly operate to penalize a party for the misconduct of his or her attorney; and 8) the need to deter both the parties and future litigants from similar abuses. Id. Accordingly, the Court should use the aforesaid factors to guide its discretion in hearing Plaintiff’s Motion.

Defendant contends that he did not willingly abuse the discovery process as is alleged by Plaintiff. In that regard, Defendant avers that the COVID-19 pandemic affected the discovery process. This Honorable Court takes judicial notice of the fact that the COVID-19 pandemic drastically affected all sectors in the U.S. and globally. Notably, the lockdown measures went a long way to freeze operations within the lockdown zones. The pandemic also brought about psychological tension. It follows; Defendant could not fully comply with the Plaintiff’s requests because of the aforesaid reasons. 

Defendant also contends that Defendant’s struggles with his counsel(s) should not be construed as tactics to delay the discovery process. The Attorney-client relationship is an agency relationship. It follows; the Attorney acts as the agent of the client. So, Defendant’s difficulty with his counsel(s) was premised on the disagreement regarding instructions and was never an intention of Defendant to delay discovery.  Accordingly, Defendant’s non-compliance was not willful. 

A lesser sanction would not prejudice Plaintiff at all. In fact, Defendant has already lost a lot from his relationship split with Plaintiff. Plaintiff and Defendant were in a silent partnership for six (6) years. The parties had entered a 50/50 equity agreement in that regard. Therefore, Defendant has lost/stands to lose his only source of income from the relationship split. Accordingly, it has been Defendant who has been suffering prejudice throughout the course of the instant case because of the aforesaid reason(s). 

Defendant also avers that this court’s grant of Plaintiff’s Motion would infringe Defendant’s due process rights since the court would have placed more consideration on the alleged Defendant’s conduct during discovery and not the merits of Defendant’s claims. In that regard, Defendant invites this Honorable Court to follow the heightened standard provided by the Court in Young. Specifically, Defendant is entitled to at most, a lesser sanction. Besides, the dismissal of Defendant’s answer would be so severe compared to the alleged damage and/or harm caused on/to Plaintiff. There are also several alternative penalties that this honorable court can give except the ones claimed by Plaintiff. Most notably, this honorable court should favor the adjudication of cases on their merit. Defendant also states that the sanctions requested by Plaintiff would penalize Defendant for mistakes and/or disagreements done by Defendant’s previous counsel. 

CONCLUSION

For the foregoing reasons, Defendant Andre Slaughter respectfully requests that Plaintiff’s Motion for Sanctions be denied and that Defendant be awarded attorney’s fees, costs, and expenses in responding to the Plaintiff’s Motion for Sanctions.

 

.

Dated: 

 

CERTIFICATE OF SERVICE

 

I hereby certify that on [ENTER DATE], a copy of the foregoing Response has been sent to the Plaintiff in the following address:

 

ROYI MOAS, ESQ.

Nevada Bar No. 10686

  1. JILL GUINGCANGCO, ESQ.

Nevada Bar No. 14717

3773 Howard Hughes Parkway, Suite 590 South

Las Vegas, NV 89169

Phone: (702) 341-5200 / Fax: (702) 341-5300

rmoas@wrslawyers.com

ajg@wrslawyers.com

 

Attorneys for Plaintiff Daria Lagovska     

   

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