GREENLIGHT SYSTEMS, LLC, an Ohio limited liability company v. Erik Breckenfelder, an individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREENLIGHT SYSTEMS, LLC, an Ohio
limited liability company; ORBITAL
ASSET HOLDINGS, INC., a California
Corporation,
Plaintiffs-counter-
defendants-Appellants,
v.
ERIK BRECKENFELDER, an individual,
Defendant-counter-claimant-
Appellee,
v.
ANDREW D.B. ROWEN,
Counter-defendant.
No. 21-16245
D.C. No. 3:19-cv-06658-EMC
MEMORANDUM*
GREENLIGHT SYSTEMS, LLC, an Ohio
limited liability company; ORBITAL
ASSET HOLDINGS, INC., a California
Corporation,
Plaintiffs-counter-
No. 21-16285
D.C. No. 3:19-cv-06658-EMC
FILED
NOV 25 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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defendants,
v.
ERIK BRECKENFELDER, an individual,
Defendant-counter-claimant-
Appellee,
v.
ANDREW D.B. ROWEN,
Counter-defendant-
Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted November 17, 2022**
San Francisco, California
Before: LINN,*** RAWLINSON, and HURWITZ, Circuit Judges.
Greenlight Systems, LLC, Orbital Asset Holdings, Inc., and Andrew Rowen
(Appellants), appeal the district court’s dismissal of their action and entry of a
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
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default judgment as a discovery sanction. Reviewing for an abuse of discretion,
we affirm.
“We review orders on discovery sanctions under [Federal] Rule [of Civil
Procedure] 37(b) for an abuse of discretion[.]” Campidoglio LLC v. Wells Fargo
& Co., 870 F.3d 963, 975 (9th Cir. 2017) (citation omitted). “A district court
abuses its discretion when it fails to apply the correct legal rule or its application of
the correct legal rule is illogical, implausible or without support in inferences that
may be drawn from facts in the record. . . .” Medina Tovar v. Zuchowski, 41 F.4th
1085, 1089 (9th Cir. 2022) (citation omitted).
1. The district court did not abuse its discretion in dismissing Appellants’
action as a discovery sanction. A district court may sanction a party who fails to
comply with a discovery order by dismissing the case entirely. See Fed. R. Civ. P.
37(b)(2)(A)(v). A district court must weigh five factors in determining whether
dismissal is an appropriate sanction, and the district court in this case addressed all
five factors in its dismissal order. See In re Phenylpropanolamine (PPA) Prods.
Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006).
When the district court issued its dismissal order, Appellants had failed to
produce any discovery despite court orders to do so, had already been given
extensions on discovery deadlines, had ignored their obligation to produce Rowen
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for a deposition, had failed to appear for a telephone conference, and had not
explained why their conduct should be excused. The district court warned
Appellants that their case would be dismissed if they did not fulfill their discovery
obligations, and it considered less drastic sanctions. Cf. Valley Eng’rs v. Elec.
Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998) (commenting that “it is not always
necessary for the court to impose less serious sanctions first, or to give any explicit
warning”) (citation omitted). Appellants fail to explain how the district court
abused its discretion under the facts of this case. See Medina, 41 F.4th at 1089.
An evidentiary hearing was not necessary before dismissing Appellants’
case because the district court provided Appellants sufficient opportunity to be
heard. See Paladin Assocs., Inc. v. Montana Pwr. Co., 328 F.3d 1145, 1164-65
(9th Cir. 2003) (explaining that an evidentiary hearing is not always required to
impose sanctions under Rule 37).
2. Neither did the district court abuse its discretion in entering the default
and default judgment against Appellants. A district court may enter a default
judgment after considering seven factors, and the district court considered all
seven. See NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016), as
amended. Once again, Appellants fail to explain how the district court’s analysis
of these factors constituted an abuse of discretion. See Medina, 41 F.4th at 1089.
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In any event, Appellants forfeited any challenge to entry of the default and default
judgment because they failed to move to set aside the entry of default or for relief
from the judgment. See Consorzio Del Prosciutto Di Parma v. Domain Name
Clearing Co., LLC, 346 F.3d 1193, 1195 (9th Cir. 2003) (observing that a party
must move to set aside the entry of a default or for relief from a default judgment
pursuant to Federal Rules of Civil Procedure 55(c) and 60(b) before we will
entertain an appeal).
AFFIRMED.
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