Case 2:18-cv-02342-APG-VCF Document 116 Filed 02/28/22 Page 1 of 16
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Plaintiff,
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`LAS VEGAS SKYDIVING ADVENTURES
`LLC,
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`v.
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`GROUPON, INC.,
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`Defendant.
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`Case No.: 2:18-cv-02342-APG-VCF
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`Order (1) Granting Defendant’s Motion
`for Summary Judgment; (2) Denying
`Plaintiff’s Motion for Leave to File Late
`Objection; (3) Denying Plaintiff’s First
`Motion for Reconsideration; and
`(4) Denying Plaintiff’s Second Motion for
`Reconsideration
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`[ECF Nos. 91, 104, 105, 109]
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`Plaintiff Las Vegas Skydiving Adventures LLC (LVSA) sued Groupon, Inc. (Groupon)
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`alleging antitrust violations, trademark infringement, and Nevada common law claims for
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`misappropriation of commercial property and unjust enrichment. I previously granted in part
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`Groupon’s motion to dismiss, dismissing with prejudice LVSA’s two antitrust claims. Groupon
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`now moves for summary judgment on the three remaining claims. LVSA moves for
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`reconsideration of my dismissal of its antitrust claims. LVSA also moves for reconsideration of
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`Magistrate Judge Ferenbach’s order that denied (1) its two motions to compel competent Federal
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`Rule of Civil Procedure (FRCP) 30(b)(6) deponents and (2) its renewed motion for spoliation
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`sanctions.1 Lastly, LVSA moves for leave to file a late objection to Magistrate Judge
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`Ferenbach’s order denying its motion to strike a rebuttal expert report.
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`I grant Groupon’s motion for summary judgment. Assuming that LVSA has a protectible
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`ownership interest in the Fyrosity mark and that Groupon used the mark, LVSA’s trademark
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`infringement claim fails as a matter of law because Groupon’s use does not give rise to a
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`1 I treat LVSA’s motion for Magistrate Judge Ferenbach to reconsider his ruling denying the
`three underlying motions as an objection to Judge Ferenbach’s ruling.
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`likelihood of consumer confusion. And LVSA presents insufficient evidence of a substantial
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`investment in the development of its property and of a benefit conferred on Groupon such that a
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`reasonable jury could find common law appropriation or unjust enrichment, respectively. I also
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`deny LVSA’s motion for reconsideration of my order dismissing its antitrust claims. LVSA’s
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`new evidence does not alter my previous ruling that the parties do not compete in the same
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`market and their services are not reasonably interchangeable.
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`My rulings on Groupon’s motion for summary judgment and LVSA’s motion for
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`reconsideration of dismissal effectively moot the remaining discovery-related motions because
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`no claims remain and these pending motions involve only the metadata dispute and do not relate
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`to consumer confusion, investment in the mark, or benefits conferred. But even if claims
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`remained, these discovery-related motions fail on the merits because none of Magistrate Judge
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`Ferenbach’s rulings was clearly erroneous or contrary to law. I therefore deny LVSA’s motion
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`for leave to file a late objection to Judge Ferenbach’s ruling denying LVSA’s motion to strike a
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`rebuttal expert report, and I deny LVSA’s motion for reconsideration of Judge Ferenbach’s
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`rulings denying two motions to compel and a renewed motion for spoliation sanctions.
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`I.
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`BACKGROUND
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`LVSA “offers services to individuals who wish to have the experience of jumping out of
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`an airplane while tethered to an experienced parachutist.” ECF No. 97-1 at 3. It offers these
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`skydiving services in and around Las Vegas, Nevada under the service mark “FYROSITY.” Id.;
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`ECF No. 1-1 at 2-3. Groupon provides discount vouchers for use with affiliated businesses,
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`including skydiving services. ECF Nos. 91 at 9; 97 at 2. LVSA is not affiliated with Groupon.
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`ECF No. 91-8 at 5.
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`In 2018, the Mesquite Airport Facebook profile shared a video originally posted on
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`LVSA’s Skydive Fyrosity Facebook profile. ECF Nos. 91-5 at 2; 97-1 at 3. The video
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`congratulated one of LVSA’s customers on her first tandem skydive with the company. Id. The
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`Mesquite Airport profile captioned the share: “Closer to Vegas. Don’t know if it’s on Groupon,”
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`tagging Groupon’s Facebook profile in the process. Id. Groupon then commented on the shared
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`post, stating in relevant part: “Here is a link to all the skydiving Groupon deals from Vegas . . . .
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`Hope you’ll find something for you!” Id. at 3. Groupon’s comment included a hyperlink to a
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`page on Groupon’s website that generates search results for the search term “skydive Fyrosity.”
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`Id.; ECF No. 91-7 at 2. Groupon’s results page displays the search term “skydive Fyrosity”
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`(1) in the search bar at the top of the page; (2) on the left side of the screen where a consumer
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`can filter and refine their search and view “breadcrumbs” tracking current search criteria; and
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`(3) below an advertisement banner but above the search results in a header that reads, “results for
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`‘skydive Fyrosity.’” ECF No. 91-7 at 2. Below the header, some text reads: “No matching deals.
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`You may also like . . . .” Id. Below that message, the page displays skydiving offers from other
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`service providers in the area. Id. Shortly after Groupon commented on the shared Facebook
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`video, LVSA’s Skydive Fyrosity profile also commented, stating in relevant part, “Skydive
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`Fyrosity is not on Groupon and will never be. . . . The link [s]hared by Groupon is
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`MISLEADING! When you click you will not see Skydive Fyrosity deals!” ECF No. 91-5 at 3.
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`LVSA sued Groupon for antitrust violations, trademark infringement, and Nevada
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`common law claims for misappropriation of commercial property and unjust enrichment. ECF
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`No. 1. I dismissed LVSA’s antitrust claims. ECF No. 30. LVSA bases its remaining claims on
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`Groupon’s Facebook comment containing the hyperlink and on the linked “skydive Fyrosity”
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`results page on Groupon’s website. ECF No. 91-8.
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`After discovery closed, LVSA moved to strike Groupon’s rebuttal expert report, twice
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`moved to compel competent FRCP 30(b)(6) deponents, and filed a renewed motion for spoliation
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`sanctions. ECF Nos. 78; 84; 87; 96. Magistrate Judge Ferenbach denied all four motions. ECF
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`No. 103.
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`Groupon now moves for summary judgment on LVSA’s remaining claims of trademark
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`infringement, misappropriation, and unjust enrichment. ECF No. 91. LVSA moves (1) for
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`reconsideration of my order dismissing its antitrust claims under the Sherman Act; (2) for leave
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`to file a late objection to Judge Ferenbach’s order denying its motion to strike; and (3) for
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`reconsideration of Judge Ferenbach’s order denying its motions to compel and its renewed
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`motion for spoliation sanctions. ECF Nos. 109; 104; 105.
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`II.
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`A.
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`ANALYSIS
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`Summary Judgment
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`Groupon argues in relevant part that LVSA’s claims for trademark infringement,
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`appropriation of commercial property, and unjust enrichment fail as a matter of law because
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`LVSA did not provide evidence of consumer confusion, substantial investment in developing its
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`mark, or conferral of a benefit on Groupon. LVSA responds generally that there are disputed
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`facts and evidence of consumer confusion, and that Groupon failed to produce a competent
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`FRCP 30(b)(6) witness such that more material facts could be disputed. Beyond its general
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`assertion of disputed facts, LVSA does not rebut Groupon’s arguments regarding the two
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`common law claims.
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`Summary judgment is proper where a movant shows that “there is no genuine dispute as
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`to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a). A fact is material if it “might affect the outcome of the suit under the governing law.”
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`Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). A dispute is genuine if “the evidence is
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`such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The
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`moving party bears the initial burden of informing the court of the basis of its motion and the
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`absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the
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`nonmoving party has the burden of proof at trial, the moving party need only point out “that
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`there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325;
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`see also Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000) (stating that
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`the moving party can meet its initial burden by “pointing out through argument . . . the absence
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`of evidence to support plaintiff’s claim”).
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`Once the moving party carries its burden, the nonmoving party must “make a showing
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`sufficient to establish the existence of [the disputed] element to that party’s case.” Celotex, 477
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`U.S. at 322. I view the evidence and reasonable inferences in the light most favorable to the
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`nonmoving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir.
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`2008).
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`1.
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`Trademark Infringement
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`Under the Lanham Act, “[t]o prevail on a claim of trademark infringement . . . a party
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`must prove: (1) that it has a protectible ownership interest in the mark; and (2) that the
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`defendant’s use of the mark is likely to cause consumer confusion.” Network Automation, Inc. v.
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`Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011) (simplified). “The test for
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`likelihood of confusion is whether a reasonably prudent consumer in the marketplace is likely to
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`be confused as to the origin of the good or service bearing one of the marks.” Multi Time Mach.,
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`Inc. v. Amazon.com, Inc., 804 F.3d 930, 935 (9th Cir. 2015). A reasonably prudent consumer is
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`one who “exercise[es] ordinary caution,” and that caution presumably increases where a buyer
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`exercises “care and precision in their purchases, such as for expensive or sophisticated items.”
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`Id. at 937 (simplified). The “default degree of consumer care is becoming more heightened as
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`the novelty of the [i]nternet evaporates and online commerce becomes commonplace.” Id.
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`(simplified).
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`Likelihood of confusion “is often a question of fact,” but summary judgment is
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`appropriate where “a court can conclude that the consumer confusion alleged . . . is highly
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`unlikely by simply reviewing the product listing/advertisement at issue.” Id. at 939. I may grant
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`summary judgment “without delving into any factors other than: (1) the type of goods and the
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`degree of care likely to be exercised by the purchaser; and (2) the labeling and appearance of the
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`products for sale and the surrounding context on the screen displaying the results page.” Id. at
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`939; see also id. at 936-37 (holding that the eight-factor Sleekcraft2 test is appropriate in cases in
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`which competing mark designs themselves are similar, but is “not particularly apt” in cases
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`involving “the design of [a] web page that is displaying . . . competing products for sale”).
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`Assuming that LVSA has a protectible ownership interest in the Fyrosity mark, its
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`trademark infringement claim fails as a matter of law because LVSA cannot establish a
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`likelihood of consumer confusion. First, I consider the type of goods and the degree of care
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`likely to be exercised by the relevant consumers. The service at issue here is expensive. See ECF
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`No. 91-7 at 2 (showing that the top two results on the hyperlinked Groupon page cost $159 and
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`$209, respectively). That suggests the consumers would be reasonably prudent. Multi Time, 804
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`F.3d at 937 (finding that watches sold online “for hundreds of dollars” were sufficiently
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`expensive to find consumers reasonably prudent as a matter of law). While cost alone was
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`sufficient for the Multi Time court to find consumers reasonably prudent, skydiving service is
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`2 AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979).
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`uniquely dangerous. Because potential skydivers entrust their lives to the service provider, the
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`service is “sophisticated” in a way that the goods (watches) in Multi Time were not. Id. at 937.
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`Thus, a consumer is likely to exercise more caution in selecting a skydiving provider.
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`The Ninth Circuit recognized in 2015 that the prudence of online consumers would
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`increase over time as the novelty of online shopping wanes. Id. Nearly seven years have passed
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`since the Ninth Circuit’s recognition of this eventuality, and consumers are undoubtedly more
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`accustomed to online shopping today, especially after the explosion of online shopping during
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`the COVID-19 pandemic. Therefore, as a matter of law, I find that reasonably prudent
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`consumers engage in the purchase of the relevant service here. See id. at 939.
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`Second, I consider the labeling, appearance, and general context of the screen displaying
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`search results. Like in Multi Time, each result on Groupon’s page was clearly labeled with the
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`service provider’s name. See ECF No. 91-7 at 2 (showing the top two results as “Skydive
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`Mesquite” and “Sin City Skydiving,” each with a different geographic indicator beneath the
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`service provider name to show the provider’s operating location); see also Multi Time, 804 F.3d
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`at 937-38 (finding that Amazon’s labeling of products by name and manufacturer was enough to
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`While LVSA argues that its Fyrosity mark appears multiple times on the results webpage,
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`the same labels and “breadcrumbs” tracking search criteria existed in Multi Time, but these were
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`insufficient to establish a likelihood of confusion where Amazon properly labeled individual
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`results. Id. at 933-34, 940. LVSA also argues that Groupon fails to prominently display the
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`message: “No matching deals. You may also like . . . .” See ECF No. 91-7 at 2. However, the
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`Ninth Circuit has rejected the idea that Groupon must explicitly mention that no results match
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`the search criteria. Multi Time, 804 F.3d at 938. Therefore, no genuine factual dispute remains,
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`and Groupon’s webpage was clearly and sufficiently labeled such that a reasonably prudent
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`consumer would not likely be confused as to whether the displayed results were attributable to
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`LVSA.
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`LVSA also argues that evidence of actual confusion exists, which is enough to carry its
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`burden to demonstrate a likelihood of confusion under the Lanham Act. However, “a showing of
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`actual confusion among significant numbers of consumers” is necessary to support a finding of a
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`likelihood of confusion. Id. at 939-40. Here, when LVSA’s owner was asked whether he could
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`“list any instances of actual confusion” stemming from the Facebook post, he stated “[t]hat’s not
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`provable[,] I don’t know.” ECF No. 91-8 at 11. His wife similarly testified that she could not
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`speak to a single example of a customer who was confused by the link. ECF No. 91-11 at 6.
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`While the owner testified that LVSA receives “10 to 14 phone calls on a daily basis” from
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`customers who mention Groupon, nothing in the record indicates that these calls relate to the
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`Facebook post or the linked search results. ECF No. 97-12 at 147. LVSA’s owner testified that
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`those calls come “from customers who have already purchased a voucher from Groupon and
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`want to redeem the voucher with our company.” Id. When asked to expand on the context of
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`these alleged calls, he explained that “Groupon has been destroying our industry for 11 years,”
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`thus suggesting that to the extent actual consumer confusion exists, it predates the 2018
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`Facebook post at issue here. See id. at 166; ECF No. 97-1 at 3.
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`LVSA also provides a screenshot of a brief text message exchange in which a prospective
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`customer mentions Groupon. ECF No. 97-13. Nothing in the record attributes this exchange to
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`the instant dispute. Instead, LVSA’s owner testified that this message was preceded by a phone
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`call in which the customer asked LVSA to match a competitor’s price listed on Groupon. ECF
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`No. 97-12 at 151. There is no evidence that the customer mentioned the Facebook post or
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`Groupon results page, and no other evidence attributes the customer’s price-matching request to
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`the instant dispute.
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`The record may demonstrate that, on a regular basis and independent of the disputed
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`Facebook comment and hyperlinked Groupon page, prospective customers try to bargain with
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`LVSA based on pricing found on Groupon. The record may likewise show that consumers
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`sometimes mistakenly seek to redeem vouchers for other skydiving companies with LVSA. But
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`there is no evidence from which a reasonable jury could attribute these interactions to the
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`Facebook post or Groupon results page such that LVSA can show significant actual confusion. I
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`therefore grant Groupon’s motion for summary judgment as to LVSA’s trademark infringement
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`claim because, as a matter of law, a reasonably prudent consumer in this marketplace is unlikely
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`to be confused as to the origin of the service offered.
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`2.
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`Misappropriation of Commercial Property
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`Nevada has not yet recognized a claim for misappropriation of commercial properties.
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`For the purpose of this motion, though, I follow other decisions of this court that have suggested
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`that the Supreme Court of Nevada would recognize such a claim. See, e.g., Salestraq Am., LLC v.
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`Zyskowski, No. 2:08-cv-01368-LRH-LRL, 2009 WL 1652170, at *3 (D. Nev. June 10, 2009),
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`aff’d, 334 F. App’x 125 (9th Cir. 2009) (noting that Nevada recognizes claims closely related to
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`commercial misappropriation and that California, which Nevada has followed when recognizing
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`new commercial tort theories, recognizes a claim for misappropriation of non-trade-secret
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`information).
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`Under California law, a plaintiff must show that “(a) the plaintiff invested substantial
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`time, skill or money in developing its property; (b) the defendant appropriated and used the
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`plaintiff’s property at little or no cost to the defendant; (c) the defendant’s appropriation and use
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`of the plaintiff’s property was without the authorization or consent of the plaintiff; and (d) the
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`plaintiff can establish that it has been injured by the defendant’s conduct.” Id. (simplified).
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`LVSA provides no evidence that it invested substantial time, skill, or money in
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`developing its trademark. It pleads that it has. ECF No. 1 at 8-9. But nothing in the record
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`substantiates the allegation such that a reasonable jury could find in LVSA’s favor. LVSA did
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`not respond to this portion of Groupon’s motion, so it did not point to evidence sufficient to raise
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`a genuine dispute on this essential element. I therefore grant Groupon’s motion for summary
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`judgment as to LVSA’s misappropriation of commercial property claim.
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`3.
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`Unjust Enrichment
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`Under Nevada law, “[u]njust enrichment occurs when one party confers a benefit on a
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`second party which accepts and retains the benefit under circumstances such that it would be
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`inequitable to retain the benefit without paying for its value.” Sierra Dev. Co. v. Chartwell
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`Advisory Grp., Ltd., 223 F. Supp. 3d 1098, 1107 (D. Nev. 2016) (citing Certified Fire Prot. Inc.
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`v. Precision Constr., 283 P.3d 250, 257 (Nev. 2012)). “The doctrine of unjust enrichment or
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`recovery in quasi contract applies to situations where there is no legal contract but where the
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`person sought to be charged is in possession of money or property which in good conscience and
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`justice he should not retain but should deliver to another or should pay for.” Id.
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`LVSA provides insufficient evidence of a benefit conferred on Groupon such that a
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`reasonable jury could find in its favor. LVSA alleges that Groupon’s Facebook comment and the
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`hyperlinked page confused prospective customers, diverting them to skydiving offers from
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`LVSA’s competitors and drumming up business for Groupon. LVSA provides no evidence of
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`actual confusion attributable to this dispute. And even if it could establish confusion, it provides
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`no evidence that this confusion resulted in a benefit that LVSA conferred on Groupon. I
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`therefore grant Groupon’s motion for summary judgment as to LVSA’s unjust enrichment claim.
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`B. Motion for Reconsideration of Partial Dismissal
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`I previously dismissed LVSA’s two antitrust claims because, under 15 U.S.C. § 2, LVSA
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`implausibly alleged that Groupon provides services that are interchangeable with its own such
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`that LVSA and Groupon operate in the same market for purposes of establishing antitrust injury.
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`ECF No. 30 at 3-5. LVSA moved for reconsideration of the dismissal. ECF No. 34. I denied its
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`motion. ECF No. 55. LVSA now moves a second time for reconsideration, arguing that newly
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`discovered evidence of a commission-earning advertising blog and Groupon’s own trademark
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`registration indicate that Groupon and LVSA compete in the same allegedly restrained market.
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`ECF No. 109 at 3-4, 6. Groupon responds that LVSA is procedurally barred from presenting this
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`evidence as it was easily discoverable and should have been presented sooner, and that this
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`evidence does not change the conclusion that the parties are not competitors in the same market.
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`ECF No. 111 at 2.
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`I may “reconsider an interlocutory order for cause.” Local Rule 59-1(a). Reconsideration
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`“also may be appropriate if (1) there is newly discovered evidence that was not available when
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`the original motion or response was filed, (2) the court committed clear error or the initial
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`decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Id.
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`“Motions for reconsideration are disfavored” and a movant should not unnecessarily repeat past
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`arguments. 59-1(b). Reconsideration is also an “extraordinary remedy, to be used sparingly in
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`the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of
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`Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (simplified).
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`While LVSA presents new evidence pursuant to Local Rule 59-1(a), that evidence does
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`not change my conclusion that LVSA and Groupon do not compete in the same market such that
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`LVSA can plausibly allege an antitrust injury. In analyzing whether parties participate in the
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`same market, I consider the “reasonable interchangeability of use or the cross-elasticity of
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`demand between the services provided” by the parties. Bhan v. NME Hospitals, Inc., 772 F.2d
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`1467, 1471 (9th Cir. 1985); see also Twin City Sportservice, Inc. v. Charles O. Finley & Co., 512
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`F.2d 1264, 1271 (9th Cir. 1975) (“[W]here there is a high degree of substitutability in the use of
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`two commodities, it may be said that the cross-elasticity of demand between them is relatively
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`high, and therefore the two should be considered in the same market.”). Here, the relevant
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`service alleged is “the experience of jumping out of an airplane while tethered to an experienced
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`parachutist.” ECF No. 1 at 3. Therefore, other tandem skydiving businesses in southern Nevada
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`compete in the same market as LVSA.
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`It is immaterial that Groupon allegedly maintains a commission-based relationship with
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`the advertising blog Vegas Food and Fun and that LVSA provides tickets3 to its customers.
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`Neither the relationship with the blog nor LVSA’s sale of tickets alters the fact that Groupon
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`does not itself provide skydiving services. See Mercy-Peninsula Ambulance, Inc. v. Cnty. of San
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`Mateo, 791 F.2d 755, 759 (9th Cir. 1986) (affirming dismissal of Section 2 claim because, while
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`a county granted contracts for paramedic services, it provided no health care services and was
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`thus not a competitor in the health care provision market); Barton & Pittinos, Inc. v. SmithKline
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`3 LVSA seems to argue that, because Groupon’s trademark describes the provision of “tickets”
`for “events and activities” as a service it provides, and because LVSA also, either impliedly or
`actually, provides tickets to its skydiving customers, then Groupon and LVSA must compete in
`the same ticket-provision market. See ECF No. 109-4 at 2. I do not decide whether LVSA’s
`ticket-provision theory could sustain an antitrust cause of action because LVSA pleaded that the
`relevant service at issue here is the provision of skydiving experiences, not tickets.
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`Beecham Corp., 118 F.3d 178, 182-83 (3d Cir. 1997) (holding that a marketing company
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`involved in a program providing vaccines to nursing homes did not compete in the same market
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`as vaccine-providing pharmacists because the marketing company did not itself provide the
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`relevant vaccine service; instead, the marketing company relied on other members of the
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`program for actual vaccine distribution.).
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`Not only do LVSA’s new allegations fail to change my ruling on whether LVSA can
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`plausibly allege antitrust injury, but LVSA could have discovered the bases for these allegations
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`far sooner. LVSA, in alleging antitrust claims against Groupon, should have reviewed
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`Groupon’s mark early on, and a simple Google search for “sky diving providers Las Vegas”
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`returns a result for the Vegas Food and Fun blog on the first results page. Yet LVSA raises this
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`evidence and related argument for the first time two years after my original dismissal ruling and
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`nine months after the close of discovery. Interests in finality and the conservation of judicial
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`resources weigh heavily against reconsideration. See Kona, 229 F.3d at 890. I therefore deny
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`LVSA’s motion for reconsideration of my order dismissing its antitrust claims.
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`C.
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`Leave to File Late Objection
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`Because of my decisions above, LVSA’s motion for leave to file an untimely objection
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`and its motion for reconsideration of discovery motions are effectively moot. See ECF Nos. 104;
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`105. The discovery disputes relate to the existence of LVSA’s mark in Groupon’s metadata,
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`which speaks only to the extent and manner of Groupon’s use of the mark. My decisions here do
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`not involve the metadata dispute, and instead implicate essential elements of LVSA’s claims that
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`it must prove in addition to mark use. Even if I resolved each discovery motion in LVSA’s
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`favor, I would still deny reconsideration of the dismissal of the antitrust claims and grant
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`Groupon’s motion for summary judgment on the other claims.
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`And even if LVSA’s motion was not moot, I would deny it. LVSA moved to strike
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`Groupon’s rebuttal expert’s report, arguing that the report was effectively an improperly delayed
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`initial report. ECF No. 78 at 2-3. Magistrate Judge Ferenbach denied the motion. ECF No. 103.
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`LVSA now seeks leave to file a late objection to Judge Ferenbach’s ruling, arguing that its
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`failure to timely object was due to excusable neglect. ECF No. 104 at 3. If I grant LVSA leave
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`to untimely object, it intends to argue that Judge Ferenbach erroneously found the report to be
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`permissible rebuttal because the report exceeds the scope of rebuttal and should have been
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`introduced as an initial report. ECF No. 104-1 at 6-9. Groupon responds that LVSA’s neglect is
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`not excusable and that the objection would fail on the merits anyhow. ECF No. 106 at 2.
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`Under Federal Rule of Civil Procedure 6(b)(1)(B), “[w]hen an act may or must be done
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`within a specified time, the court may, for good cause, extend the time . . . on motion made after
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`the time has expired if the party failed to act because of excusable neglect.” See also Pioneer Inv.
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`Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (discussing factors to
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`consider in determining whether a party’s failure to timely act constitutes excusable neglect). If I
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`grant a party leave to file an untimely objection, I consider whether “it has been shown that the
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`magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); LR
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`IB 3-1(a).
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`LVSA’s untimely objection would fail on the merits. I have reviewed the objection,
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`Judge Ferenbach’s ruling, and the underlying papers. Judge Ferenbach’s ruling is not “clearly
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`erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). I therefore affirm Judge
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`Ferenbach’s ruling and deny LVSA’s motion for leave to file an untimely objection.
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`/ / / /
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`Case 2:18-cv-02342-APG-VCF Document 116 Filed 02/28/22 Page 15 of 16
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`D.
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`Objections
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`Similarly, even if LVSA’s objections were not moot, I would deny them. LVSA twice
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`moved to compel competent FRCP 30(b)(6) deponents and it renewed its motion for spoliation
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`sanctions. ECF Nos. 84; 87; 96. Magistrate Judge Ferenbach denied the motions to compel
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`because they were untimely and because LVSA did not raise any deponent-related issues in a
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`joint status report ordered by the court to highlight all remaining discovery disputes. ECF No.
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`103. He likewise denied the motion for renewed spoliation sanctions because no evidence
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`indicated that the allegedly spoliated evidence ever existed and LVSA presented no evidence that
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`Groupon acted negligently or made a calculated effort to frustrate discovery. Id.
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`LVSA now moves for reconsideration of Judge Ferenbach’s rulings, arguing that the
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`motions to compel were timely and that sufficient evidence indicated that the allegedly spoliated
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`evidence existed. ECF No. 105. I have reviewed the objections, Judge Ferenbach’s rulings, and
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`the underlying papers. Judge Ferenbach’s rulings are not clearly erroneous or contrary to law. I
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`therefore affirm Judge Ferenbach’s rulings and deny LVSA’s motion for reconsideration of the
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`discovery motions.
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`III. CONCLUSION
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`I THEREFORE ORDER that Defendant Groupon, Inc.’s motion for summary judgment
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`(ECF No. 91) is GRANTED.
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`I FURTHER ORDER that Plaintiff Las Vegas Skydiving Adventures LLC’s motion for
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`leave to file late objection (ECF No. 104) is DENIED.
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`I FURTHER ORDER that LVSA’s first and second motions for reconsideration (ECF
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`Nos. 105 and 109) are DENIED.
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`Case 2:18-cv-02342-APG-VCF Document 116 Filed 02/28/22 Page 16 of 16
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`I FURTHER ORDER the