Bernhard v. Muir ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROXANE BERNHARD and RANDY B. Case No. 2:20-cv-2353-KJM-KJN BERNHARD, 12 ORDER ON DEFENDANTS’ MOTION TO Plaintiffs, COMPEL AND FOR SANCTIONS, AND 13 ORDER TO SHOW CAUSE v. 14 (ECF No. 19.) CITY OF TRACY, et al., 15 Defendants. 16 17 On March 2, 2022, defendants filed a motion to compel responses to requests for 18 productions of documents and special interrogatories, served on plaintiffs on November 17, 19 2021.1 (ECF No. 19.) In the motion, defendants asserted they have not received any discovery 20 responses from plaintiffs’ counsel, despite defense counsel’s letter and voicemail message in an 21 attempt to meet and confer. (Id.) Plaintiff did not file any opposition to the motion and failed to 22 appear at the hearing on the April 12, 2022. (ECF Nos. 21, 22.) At the hearing, defense counsel 23 stated he left another unanswered voicemail with plaintiffs’ counsel on Friday, April 8, 2022, and 24 noted plaintiffs’ failure to respond is a pattern as plaintiffs have yet to complete the required 25 initial disclosures originally due in July 2021. (See ECF No. 13, ordering initial disclosures to be 26 transmitted by July 1, 2021.) 27 1 This case is referred to the undersigned for pre-trial proceedings pursuant to 28 U.S.C. 28 § 636(b)(1) and Local Rule 302(c)(21). ] Given plaintiffs’ failure to respond to the discovery requests, failure to file opposition to 2 || defendants’ motion, and failure to appear at the April 12, 2022, the court GRANTS defendants’ 3 || motion to compel. Plaintiffs shall, within 14 days of this order, respond to all discovery requests 4 || in defendants’ request for production (set one) and special interrogatories (set one). All 5 || objections are waived. Further, plaintiffs shall pay $750 in attorney’s fees to defendant’s counsel 6 || which the court finds a reasonable sanction. Fed. R. Civ. P. 33(b)(4); 34(b)(2)(A); 37(a)(S)(A). 7 Additionally, the court’s docket suggests plaintiffs’ last appearance in this action was on 8 | June 17, 2021, and last filing was a joint status report on May 19, 2021. (See Docket Entry for 9 || June 23, 2021; ECF No. 11.) Even after District Judge Mueller issued an order to show cause 10 || why the court should not dismiss the City of Tracy for lack of prosecution, plaintiffs did not 11 || respond, and the court dismissed the City of Tracy with prejudice. (See ECF Nos. 15, 17.) Given 12 | this conduct, plaintiffs are ordered to show cause why this action should not be dismissed with 13 || prejudice in its entirety for failure to prosecute. See Fed. R. Civ. P. 37(b)(2)(A)(v), 37(d)(3) 14 | (noting that allowable sanctions include “dismissing the action or proceeding in whole or in 15 || part”); Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993) (““[D]isobedient conduct not 16 || shown to be outside the control of the litigant’ is all that is required to demonstrate willfulness, 17 || bad faith, or fault.”); Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir. 1990); (“A 18 || court may consider prior misconduct when weighing a subsequent sanction motion.”); see also 19 || Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte 20 || to dismiss a suit for failure to prosecute”). 21 ORDER 22 Accordingly, IT IS HEREBY ORDERED that, within 14 days of this order, plaintiff shall: 23 1. Respond to defendants’ requests for production and interrogatories; 24 2. Pay defendants a reasonable attorney’s fee of $750; and 25 3. Show cause in writing why this action should not be dismissed for failure to prosecute. 26 || Dated: April 13, 2022 bern.2353 Ae Notrrmann— 28 KENDALL J. NE _ UNITED STATES MAGISTRATE JUDGE