(PS) Hammerbeck v. County of Shasta ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD KEVIN HAMMERBECK, No. 2:18-CV-2289-JAM-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 COUNTY OF SHASTA, 15 Defendant. 16 17 Plaintiff, who is proceeding pro se, brings this civil action. Pending before the 18 Court is Defendant’s unopposed motion to dismiss. See ECF No. 37. Defendant seeks dismissal 19 as an appropriate sanction for Plaintiff’s failure to comply with the Court’s December 22, 2020, 20 order granting Defendant’s motion to compel and ordering Plaintiff to provide discovery and pay 21 reasonable expenses within 30 days. 22 On November 12, 2020, Defendant filed a motion to compel. See ECF No. 32. 23 Plaintiff did not file an opposition. In granting the unopposed motion, the Court stated: 24 The Court has reviewed Defendant’s discovery requests, provided as exhibits to the declaration of Gary Brickwood, Esq., filed in 25 support of Defendant’s motion, see ECF No. 32-2, Exhibits 1, 2, and 3, and finds the discovery sought to be relevant. Defendant has also 26 demonstrated which discovery requests are the subject of its motion and why Defendant believes it is entitled to an order compelling responses, 27 specifically Plaintiff’s failure to serve responses at all. Finally, Defendant’s counsel’s declaration establishes reasonable costs associated 28 with the instant motion to compel. Defendant’s motion to compel will, 1 therefore, be granted. Plaintiff is cautioned that failure to comply with this order may result, on properly noticed motion, and order for terminating 2 sanctions. 3 ECF No. 36, pg. 3. 4 Plaintiff was ordered to serve responses to Defendant’s interrogatories, set one, 5 requests for production, set one, and requests for admissions, set one, within 30 days of the date of the 6 Court’s order, which was issued on December 22, 2020. See id. Plaintiff was also directed to pay 7 Defendant reasonable costs in the amount of $1,567.50, also within 30 days of the date of the order. 8 See id. In its current motion to dismiss, Defendant states that, to date, and despite its attempts to meet 9 and confer following issuance of the December 22, 2020, order, Plaintiff has not complied with the 10 Court’s order. See ECF No. 37-1, pgs. 3-4. Plaintiff has not filed an opposition to Defendant’s 11 current motion to dismiss. 12 The court must weigh five factors before imposing the harsh sanction of dismissal. 13 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 14 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 15 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 16 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 17 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 18 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 19 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 20 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 21 there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 22 1986). Dismissal has also been held to be an appropriate sanction for failure to follow local rules, 23 see Ghazali, 46 F.3d at 53, failure to comply with an order to file an amended complaint, see 24 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), failure to inform the district court 25 and parties of a change of address pursuant to local rules, see Carey v. King, 856 F.2d 1439, 26 1440-41 (9th Cir. 1988) (per curiam), failure to appear at trial, see Al-Torki v. Kaempen, 78 F.3d 27 1381, 1385 (9th Cir. 1996), and discovery abuses, see Henry v. Gill Indus., Inc., 983 F.2d 943, 28 948 (9th Cir. 1993). 1 Here, the Court finds terminating sanctions to be appropriate. Plaintiff's discovery 2 | abuse in this case appears to be willful. First, he failed to provide responses when discovery was 3 | served on him. Second, he failed to file any opposition to Defendant’s motion to compel. Third, 4 | he has failed to comply with the Court’s December 22, 2020, order. Fourth, Plaintiff did not 5 || respond to Defendant’s meet-and-confer efforts following issuance of the December 22, 2020, 6 | order. Fifth, Plaintiff has not filed an opposition to the current motion to dismiss. Plaintiff's 7 | willful failure to provide discovery or otherwise cooperate in the discovery process frustrates the 8 | public’s interest in expeditious resolution of this matter on the merits and the Court’s need to 9 | manage its docket by moving cases towards resolution. Plaintiff's conduct also prejudices 10 | Defendant’s ability to defend against Plaintiffs claims in this case. Finally, there does not appear 11 | any less drastic option to secure Plaintiff's compliance and cooperation. 12 Based on the foregoing, the undersigned recommends that Defendant’s motion to 13 || dismiss, ECF No. 37, be granted and that Plaintiff's motion, ECF No. 33, seeking unspecified 14 | relief be denied as moot. 15 These findings and recommendations are submitted to the United States District 16 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 17 | after being served with these findings and recommendations, any party may file written objections 18 | with the court. Responses to objections shall be filed within 14 days after service of objections. 19 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 20 | Yist, 951 F.2d 1153 (9th Cir. 1991). 21 22 | Dated: March 9, 2021 Sx