*1 The Court submits this Report and Recommendation to the Honorable Andre Birotte, Jr., United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

On May 21, 2021, Plaintiff Washoutpan.com, LLC (“WP”) and Defendant White Cap, L.P. (formerly known as HD Supply) filed a joint stipulation re White Cap's Motion to Compel Supplemental Responses to Requests for Production and Interrogatories. (Dkt. 86.) The Court ordered WP to supplement its responses, and when it did not do so sufficiently, White Cap requested the Court to issue various evidentiary sanctions due to WP's failure to sufficiently respond to the Court's order compelling further discovery. Despite multiple opportunities to oppose the Motion for Evidentiary Sanctions, WP has not done so. On August 5, 2021, the Court issued an order to show cause by August 15, 2021, why it should not grant the Motion for Evidentiary Sanctions in its entirety. (Dkt. 101.) WP did not respond. (Dkt. 105.) Evidentiary sanctions are appropriate. It is recommended that White Cap's Motion be GRANTED in full.

WP filed this action in early 2019 (Dkt. 1), and the crux of the remaining claims are trademark and trade dress infringement, as well as passing off and false advertising. (Dkt. 34, Second Amended Complaint.) WP's former counsel withdrew in December 2020. (Dkt. 57.) The District Court stayed the case and required WP to obtain counsel. (Dkt. 59.) When WP failed to do so, White Cap moved to dismiss for failure to prosecute. (Dkt. 61.) The Court granted WP additional opportunities to obtain new counsel by repeatedly continuing the hearing on White Cap's Motion to Dismiss. (Dkt. 65, 75, 82.) Ultimately, WP obtained new counsel. (Dkt. 74, 77.) Due to the appearance of WP's new counsel, the District Judge declined to dismiss the case for failure to prosecute and then lifted the discovery stay in the matter.

Although White Cap had first served a motion to compel supplemental responses to Requests for Production and Interrogatories on WP months earlier in December 2020 before WP's prior counsel withdrew, White Cap again served WP's new counsel with the Motion on April 21, 2021. White Cap then extended WP's responsive deadline until May 10, and again at WP's request, until May 19, 2021. (Flaherty Decl., Dkt. 96-2, ¶ 2.) The Joint Stipulation was filed on May 21, 2021. (Dkt. 86.) In its portion of the Joint Stipulation, WP took the position that the discovery dispute would be mooted by its further production on June 7. (Id.) However, WP did not make any production by its self-imposed extension of June 7. (Flaherty Decl., ¶ 9.)

On June 15, 2021, the Court issued an order granting White Cap's Motion to Compel. (Dkt. 94.) The Court's order required WP to “(1) produce lists of documents, responsive bates numbers or responses to the above interrogatories as it promised to do so by June 15, 2021, and (2) to provide additional responsive documents should they exist or a certification under Rule 34 as it promised to do by June 25, 2021.” Id. at 1. Additionally, WP was required to “provide a declaration from a principal (not counsel) under oath and subject to penalty of perjury that all information and documents responsive to the above discovery requests have been produced[,]” which was required within 3 days of the completion of its responses to discovery. The Court admonished WP that “failure to comply with this Order will bring into consideration the full panoply of sanctions available under Fed. R. Civ. P. Rule 37(b)(2)(A)(i)-(vii).” (Id. at 2.)

*2 WP served some supplemental discovery and document production, but White Cap believed these responses were deficient. White Cap sent WP a meet and confer letter regarding these issues and the parties met and conferred. When sufficient responses were not produced following the meet and confer efforts, White Cap served its portion of a joint stipulation on WP on July 18, wherein it sought evidentiary sanctions due to WP's failure to comply with the Court's order to compel, specifically as to Request for Production Nos. 72, 91, and 92, and Interrogatory Nos. 2, 9, and 10. WP's counsel also did not respond or complete the joint stipulation; therefore, White Cap filed the motion to compel as a noticed motion as permitted by Civ. L.R. 37-2.4. (Flaherty Decl. ¶ 15; Dkt. 96.)

The Motion was noticed for August 24, 2021, so WP's deadline to oppose the Motion was August 3, 2021. WP did not file an opposition. On August 5, 2021, the Court issued an order to show cause why evidentiary sanctions should not issue, giving WP another chance to provide the Court with its position. (Dkt. 105.) WP did not respond. Accordingly, on August 17, 2021, the Court ordered WP to pay monetary sanctions and directed White Cap to prepare a proposed Report and Recommendation setting forth the evidentiary sanctions sought and justifications therefor. (Dkt. 105.)

In light of the multiple opportunities given to WP and its failure to act, it is clear that WP has consented to the Court's granting of White Cap's Motion in full. It is, therefore, well within the Court's discretion to grant the Motion. See Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming dismissal for failure to file timely opposition papers where plaintiff had notice of the motion and ample time to respond); Civ. L. R. 7-12 (“The failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion.”).

Moreover, sanctions are appropriate due to WP's failure to obey the Court's order compelling discovery. Pursuant to Federal Rule of Civil Procedure 37, “If a party ... fails to obey an order to provide or permit discovery, including an order under Rules 26(f), 35 or 37(a), the court where the action is pending may issue further just orders.” These orders may include: “(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; [or] (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed. R. Civ. P. Rule 37(b)(2)(A). Accordingly, because WP has failed or refused (and in some cases intentionally withheld) disclosure despite multiple and repeated opportunities and despite this Court's order requiring disclosure, evidentiary and further monetary sanctions are warranted to mitigate the prejudice suffered by White Cap.

The Court makes the following findings and recommendations for sanctions:

1. It has been established that WP has not suffered any actual damages. WP is precluded from later introducing evidence of its actual damages.

2. It has been established that the absence of WP's advertising expenditures weigh against a likelihood of confusion asserted by WP. WP is precluded from later introducing evidence of its advertising expenditures.

3. It has been established that WP lacks evidence reflecting any federal, state, or local statutes and regulations application to the production, manufacture, or marketing of washout pans and lacks evidence reflecting the nature or circumstances of WP's compliance therewith. WP is precluded from later introducing evidence of any federal, state, or local statutes and regulations applicable to the production, manufacture, or marketing of washout pans or its claimed compliance therewith.

*3 4. It has been established that WP is neither the first nor the substantially-exclusive user of the term “washout pan.” It is directed that “washout pan” is pervasively used in the trade and by the public for the types of products at issue. WP is prohibited from later attempting to introduce evidence to show that WP was the first or substantially-exclusive user of the term “washout pan.” WP is prohibited from later arguing or attempting to introduce evidence that “washout pan” is not a widely used term in the trade or by the relevant public for the types of products at issue.

5. It has been established that Mr. Mower's LinkedIn post contending that he was “finishing a 15 minute documentary” with the help of “very creative influencers” about “how [WP] was stolen and replicated in China by [White Cap f/k/a HD Supply]” is false. WP is prohibited from introducing at trial any evidence reflected in the images, video, text, and sound files comprising the video that have been withheld thus far.

6. It has been established that in early 2020, WP's principal Reef Mowers attempted to and did publicly threaten and intimidate White Cap and its employees by disseminating videos of himself making such threats on LinkedIn. It has been established that WP's principal Reef Mowers has in the course of litigating this case made knowingly false statements and certifications despite being subject to a court order requiring a declaration be made under penalty of perjury. WP is prohibited from later attempting to introduce evidence of or regarding the videos on WP's behalf, or arguing that their content is non-threatening.

IT IS, THEREFORE, RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) granting White Cap's Motion for Evidentiary Sanctions; and (3) imposing the sanctions set forth above.

PROPOSED

ANDRE BIROTTE, JR., UNITED STATES DISTRICT JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records on file, and the Report and Recommendation of the United States Magistrate Judge. The Court accepts the findings and recommendations of the Magistrate Judge.

Accordingly, IT IS HEREBY ORDERED that:

1. It has been established that WP has not suffered any actual damages. WP is precluded from later introducing evidence of its actual damages.

2. It has been established that the absence of WP's advertising expenditures weigh against a likelihood of confusion asserted by WP. WP is precluded from later introducing evidence of its advertising expenditures.

3. It has been established that WP lacks evidence reflecting any federal, state, or local statutes and regulations application to the production, manufacture, or marketing of washout pans and lacks evidence reflecting the nature or circumstances of WP's compliance therewith. WP is precluded from later introducing evidence of any federal, state, or local statutes and regulations applicable to the production, manufacture, or marketing of washout pans or its claimed compliance therewith.

4. It has been established that WP is neither the first nor the substantially-exclusive user of the term “washout pan.” It is directed that “washout pan” is pervasively used in the trade and by the public for the types of products at issue. WP is prohibited from later attempting to introduce evidence to show that WP was the first or substantially-exclusive user of the term “washout pan.” WP is prohibited from later arguing or attempting to introduce evidence that “washout pan” is not a widely used term in the trade or by the relevant public for the types of products at issue.

*4 5. It has been established that Mr. Mower's LinkedIn post contending that he was “finishing a 15 minute documentary” with the help of “very creative influencers” about “how [WP] was stolen and replicated in China by [White Cap f/k/a HD Supply]” is false. WP is prohibited from introducing at trial any evidence reflected in the images, video, text, and sound files comprising the video that have been withheld thus far.

6. It has been established that in early 2020, WP's principal Reef Mowers attempted to and did publicly threaten and intimidate White Cap and its employees by disseminating videos of himself making such threats on LinkedIn. It has been established that WP's principal Reef Mowers has in the course of litigating this case made knowingly false statements and certifications despite being subject to a court order requiring a declaration be made under penalty of perjury. WP is prohibited from later attempting to introduce evidence of or regarding the videos on WP's behalf, or arguing that their content is non-threatening.