BASS UNDERWRITERS, INC., Plaintiff, v. David KONO, Brooks Insurance Agency, LLC, Defendants Case No. 2:22-cv-00138-RFB-EJY United States District Court, D. Nevada Signed May 15, 2024 Counsel Karl Orell Riley, Cozen O'Connor, Las Vegas, NV, for Plaintiff. Amanda Brookhyser, Zumpano Patricios Popok & Helsten, Las Vegas, NV, for Defendant David Kono. Dennis L. Kennedy, Jarod Penniman, Joseph A. Liebman, Bailey Kennedy, Las Vegas, NV, Timothy J. Lepore, Ropers, Majeski, Kohn & Bentley, Las Vegas, NV, Michael R. Garcia, Pro Hac Vice, ArentFox Schiff LLP, San Francisco, CA, Elliott Kroll, ArentFox Schiff, New York, NY, Kirsten A. Hart, ArentFox Schiff LLP, Los Angeles, CA, for Defendant Brooks Group Insurance Agency, LLC. Youchah, Elayna J., United States Magistrate Judge ORDER *1 Pending before the Court is Defendant David Kono's Motion for Sanctions (ECF No. 120). The Court reviewed the Motion, the Opposition (ECF No. 122), and the Reply (ECF No. 123). The Motion for Sanctions is denied. On April 17, 2024, the Court entered an Order denying Plaintiff's Motion to Compel. ECF No. 119. While an award of attorney's fees was requested in Mr. Kono's Response (ECF No. 117), sanctions were not requested. Id. The Court did not award attorney's fees in its Order; albeit it did not state the reason for the same. Federal Rule of Civil Procedure 37 is “flexible” with respect to sanctions, and district courts have broad discretion to fashion sanctions under Rule 37, when they are appropriate. 8B Wright, Miller, Marcus, Federal Practice & Procedure: Civil § 2284 (3rd ed. 2010); Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam). The Court finds that although Plaintiff's Motion was one with which the Court disagreed, the Court exercises its discretion finding an award of fees under Fed. R. Civ. P. 37(a)(5)(B) is not warranted. This ordinary discovery dispute is not a circumstance in which an award of fees and costs, or imposition of sanctions, is just. To demonstrate that Plaintiff's Motion to Compel was “substantially justified” Plaintiff does not have to demonstrate justification “to a high degree, but rather justified in substance or in the main ... [that is,] a genuine dispute, or ... reasonable people could differ as to [the appropriateness of the contested action.]” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quote marks and citations omitted; second brackets in original). As stated in A. Miner Contracting Incorporated v. Dana Kepner Company Inc., Case No. CV-10-08083-PCT-JRG 2011 WL 13300273 (D. Ariz. Aug. 4, 2011): “[t]he sanctions enumerated in the rule are not exclusive and arbitrary but flexible, selective, and plural. The court may, within reason, use as many and as varied sanctions as are necessary to hold the scales of justice even.” Grimes v. City and Cnty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (internal quotation marks omitted). ... Accordingly, the court FINDS that the flexible and equitable goals of “holding the scales of justice even” that underlie Rule 37 would not be served by an award of fees in the present dispute. Id. at *2 (emphasis in original). Here, the docket reflects discovery has been hotly contested. Plaintiff pursued discovery from Defendants in the District of Nevada as well as in the District of New Jersey. Plaintiff's attempt to compel supplementation was not in bad faith, but prompted by the belief—not well supported—that there must be something more Mr. Kono has that Plaintiff does not have. In the end, Plaintiff's Motion to Compel reflected an insufficient basis to require Mr. Kono to supplement his responses; however, this failure did not tip the scales to such an extent that justice is served by an award of fees. Said, slightly differently, the Court finds, in its exercise of discretion, an award of fees or other sanctions would be unjust.[1] Mr. Kono's conduct when departing employment by Plaintiff and commencing employment with Plaintiff's direct competitor (Brooks) is such that it gave rise to Bass’ serious concerns. Plaintiff successfully obtained a temporary restraining order (ECF No. 7)—not a burden easily met—as well as Mr. Kono's stipulated agreement to extend the TRO (ECF No. 16) and ultimate agreement to a preliminary injunction (ECF No. 18). The Court cannot presume Mr. Kono agreed to such orders was undertaken lightly. It is true that Bass did not support its Motion to Compel sufficiently to lead to an order granting the same, but a careful review of the papers submitted both in opposition to the Motion to Compel and in support of the instant Motion for Sanction do not lead the Court to find an award of fees is required or just in this case. *2 Accordingly, IT IS HEREBY ORDERED that Defendant David Kono's Motion for Sanctions (ECF No. 120) is DENIED. Footnotes [1] “The ‘unjust’ language in the rule is a safety valve that gives the court discretion to deny awards where a party advances a novel but credible extension of the law or equitable considerations dictate that the award should not be made.” Hahn v. Massage Envy Franchising, LLC, Civil No. 12cv153-DMS(BGS), 2014 WL 12899320, at *2 (S.D. Cal. Aug. 22, 2014) (internal citation omitted).