United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
SANCTIONS AND DENYING MOTION FOR SUMMARY JUDGMENT BASED ON
ALLEGED LACK OF DAMAGES
Oki Mollway, United States District Judge.
case involves alleged copyright infringement. On June 1,
2017, Magistrate Judge Kevin S.C. Chang determined that
Plaintiff Keoni Payton's answers to discovery were
insufficient and that he had failed to attend his scheduled
deposition. Magistrate Judge Change ordered Payton to appear
for a deposition in Hilo, Hawaii, within 30 days, with Payton
being responsible for paying the court reporter's fees.
Payton was ordered to supplement his discovery responses no
later than one week prior to his deposition. See ECF
Payton did not supplement his discovery responses, Defendants
Defend, Inc., and Michael Buntenbah cancelled the deposition
and filed the present motion for sanctions. Defendants also
move for summary judgment, arguing that Payton cannot prove
damages. The court grants the motion for sanctions in part
and denies it in part. The court denies the motion for
24, 2015, Payton filed the Complaint in this matter.
See ECF No. 1. It asserts claims of direct copyright
infringement (Count I), contributory infringement (Count II),
and vicarious copyright infringement (Count III).
Complaint alleges that Payton designed and owns an image
containing a drawing of an AR-15 rifle, along with the words
“Defend” and “Hawaii”:
ECF No. 1, ¶¶ 10-11.
alleges that he designed and displayed the image during or
before 2005. Id. ¶ 12. In December 2014, Payton
registered the image with the Copyright Office, Registration
Number VA 1-934-173. ECF No. 1-1 (copy of copyright
Complaint alleges that Averi Sauders conveyed the image to
Defend, Inc., and Buntenbah even though she had no authority
to do so. See Complaint ¶¶ 15-16. Payton
concedes that Saunders was his “prior business and
romantic partner.” See Plaintiff Keoni
Payton's Responses to Defendant Defend, Inc., and Michael
Butenbah aka Mike Malone's First Request For Answers to
Interrogatories to Plaintiff No. 8, ECF No. 85-6, PageID #
April 12, 2016, Defendants sent Payton a request for answers
to interrogatories and a request for production of documents.
See Declaration of Counsel ¶ 3, ECF No. 85-2.
On May 24, 2016, Payton produced 285 pages of documents
responsive to the document production request. Id.
¶ 4. On May 31, 2016, Payton answered the
interrogatories. Id. ¶ 5.
1, 2017, Magistrate Judge Chang held a hearing on
Defendants' motion to extend the deadline to file
dispositive motions based on Payton's insufficient
discovery responses and Payton's failure to attend his
scheduled deposition. See ECF No. 81. The district
judge has a recording of that hearing. Magistrate Judge Chang
determined that Payton's responses were incomplete and
inadequate. Magistrate Judge Chang therefore continued the
trial date and dispositive motions deadline, and ordered
Payton to appear for a deposition in Hilo, Hawaii, on a
mutually agreeable date in no more 30 days. Magistrate Judge
Chang also required (1) that Payton pay for the appearance of
the court reporter for the previous deposition that he had
failed to appear at and for the upcoming deposition, and (2)
that Payton supplement his previous discovery responses at
least one week before the deposition. Payton was warned that,
if he failed to appear at the upcoming deposition, sanctions
might be imposed, which might include costs, fees, and
dismissal of the action with prejudice.
parties agreed that Payton's deposition would occur on
June 30, 2017, meaning that Payton's supplemental
discovery responses were due on June 23, 2017. See
Decl. of Counsel ¶ 20, ECF No. 85-2. When Payton failed
to supplement his discovery responses, Defendants cancelled
the scheduled deposition. Id. ¶ 22.
THE MOTION FOR SANCTIONS IS GRANTED IN PART.
to Rule 37(d)(1)(A) of the Federal Rules of Civil Procedure,
Defendants seek sanctions for Payton's failure to
supplement his discovery responses as ordered by Magistrate
Judge Chang as well as for his failure to timely comply with
other discovery obligations. Specifically, Defendants seek
dismissal of this action with prejudice, as well as ...