Rodriguez v. County of San Diego ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JULIE RODRIGUEZ, Case No.: 19-cv-0424-L-MDD 12 Plaintiff, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 COUNTY OF SAN DIEGO; ADAM RE: DEFENDANTS’ MOTION FOR RATCLIFFE; TIMOTHY DENNY; 15 TERMINATING SANCTIONS Defendants. 16 [ECF No. 24] 17 Before the Court is Defendants’ Motion for Terminating Sanctions; or in 18 the Alternative, Evidentiary Sanctions. (ECF No. 24).1 The Motion requests 19 the Court terminate this case due to Plaintiff’s failure to prosecute her claims 20 and follow the Court’s Order. This Report and Recommendation is submitted 21 to United States District Judge M. James Lorenz pursuant to 28 U.S.C. § 22 636(b)(1) and Local Civil Rule 72.1(c)(1) of the United States District Court 23 for the Southern District of California. For the reasons set forth herein, the 24 25 26 1 All pincite page references refer to the automatically generated ECF page 1 Court RECOMMENDS that Defendants’ Motion be GRANTED and directs 2 that judgment be entered DISMISSING this action WITH PREJUDICE. 3 I. FACTUAL AND PROCEDURAL BACKGROUND 4 The complaint in this case, charging the use of excessive force by 5 Defendants, was filed on March 4, 2019. (ECF No. 1). The Early Neutral 6 Evaluation and Case Management Conference was held on June 17, 2019. 7 (ECF No. 7). The first Scheduling Order was issued that same day and set a 8 discovery deadline of December 18, 2019. (ECF No. 8). On September 6, 2019, 9 upon joint motion of the parties, the Court amended the Scheduling Order 10 because Plaintiff had replaced her attorney and was hospitalized for a time in 11 August. The discovery deadline was extended to February 17, 2020. (ECF No. 12 13). On January 7, 2020, upon joint motion of the parties based upon 13 Plaintiff’s inability to be deposed due to illness, the Court again extended the 14 discovery completion deadline to March 18, 2020. (ECF No. 16, 17). On 15 February 5, 2020, the Court granted a joint motion to extend the discovery 16 deadline to May 18, 2020, again due to Defendants’ inability of obtaining 17 Plaintiff’s deposition. (ECF Nos. 18, 19). 18 On May 6, 2020, upon the fourth joint motion of the parties to continue 19 trial and pretrial deadlines, the Court extended the discovery deadline to 20 July 3, 2020, due to restrictions related to the COVID-19 pandemic. (ECF 21 No. 22, 23). 22 The history of attempts to depose Plaintiff is as follows: 23 1. Plaintiff was scheduled for deposition on December 18, 2019. On 24 December 16, 2019, Plaintiff sought and was given a continuance by 25 Defendants, due to illness, to January 6, 2020. (ECF No. 20 at 2). 26 2. On January 6, 2020, Plaintiff appeared for deposition but claimed to 1 scheduled to resume on January 15, 2020. (Id.). 2 3. On January 13, 2020, because her laryngitis had not resolved, the 3 parties agreed to continue her deposition to January 23, 2020. (ECF No. 20 4 at 3). 5 4. On January 22, 2020, counsel for Plaintiff sought another extension 6 because Plaintiff’s voice had not returned. The parties agreed to continue to 7 deposition to January 31, 2020. (Id.). 8 5. On January 30, 2020, counsel confirmed Plaintiff’s availability for the 9 deposition on the following day. On January 31, 2020, Plaintiff appeared but 10 stated that she remained too ill to provide testimony. (Id.). This event 11 resulted in Defendants’ motion to compel Plaintiff’s deposition. (ECF No. 20). 12 On March 17, 2020, the Court granted Defendants’ motion and imposed 13 monetary sanctions in the amount of $1,923.00. (ECF No. 21). 14 6. Plaintiff was scheduled for deposition on April 9, 2020. On April 6, 15 2020, Defendants took Plaintiff’s deposition off calendar due the Governor’s 16 “stay at home” order regarding COVID-19. (ECF Nos. 24-1 at 9; 30 at 3) 17 7. On May 6, 2020, the Court granted the parties fourth Joint Motion to 18 extend the discovery deadline due to restrictions related to the COVID-19 19 pandemic. 20 8. On May 29, 2020, Defendants served their final written discovery 21 requests on Plaintiff. (ECF No. 24-1 at 11). Plaintiff did not respond to the 22 propounded discovery. (Id.). 23 9. Plaintiff was scheduled again for deposition on June 10, 2020. On 24 June 8, 2020, Plaintiff informed counsel that she would be unable to attend 25 the deposition due to lack of transportation. Defense counsel agreed to 26 reschedule the deposition contingent on Plaintiff’s confirmation of attendance 1 deposition was rescheduled for June 12, 2020. 2 10. On June 12, 2020, despite the agreement, Plaintiff did not appear 3 for deposition. 4 Defendants now seek an order for terminating sanctions and seek 5 monetary recovery of their legal fees and costs due to the unsuccessful 6 attempts to depose Plaintiff. (ECF No. 24). Defendants allege Plaintiff is 7 engaging in a pattern and practice of intentionally avoiding her discovery 8 obligations and defying the Court’s Order. (ECF No. 24-1). Defendants have 9 provided evidence that they incurred costs totaling $594.50 for court 10 reporting and videography of the abandoned deposition on June 12, 2020. 11 (Id. at 10). Defendants also provide their costs and fees following their initial 12 motion to compel in the sum of $2,808.30. (Id. at 10-11). Further, 13 Defendants seeks the costs of bringing this instant motion in the sum of 14 $2,352.90. (Id. at 11). Last, Defendants reiterate that the Court’s prior 15 award of discovery sanctions, in the amount of $ 1,923.00, remains unpaid 16 and allege that Plaintiff has no intention of complying with the Court’s order. 17 (Id. at 8, 9). 18 Plaintiff asserts she did not act in bad faith. (ECF No. 30). Plaintiff 19 alleges good faith efforts were made to participate throughout the discovery 20 process however her ability to do so was impeded by unanticipated medical 21 issues. (Id. at 4). Plaintiff further asserts that she is, and has been, 22 amenable to be deposed but has experienced hardship rendering her 23 incapable of doing so. (Id. at 6). 24 II. LEGAL STANDARD 25 “Federal Rule of Civil Procedure 37 authorizes the district court, in its 26 discretion, to impose a wide range of sanctions when a party fails to comply 1 R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983). Additionally, 2 district courts have inherent power to “impose sanctions including, where 3 appropriate, default or dismissal.” Thompson v. Hous. Auth. of City of L.A., 4 782 F.2d 829, 831 (9th Cir. 1986) (citing Link v. Wabash R.R. Co., 370 U.S. 5 626 (1961)). 6 When a party disobeys a discovery order, Federal Rule of Civil 7 Procedure 37 provides the Court with several options. Rule 37(d)(1)(A)(i) 8 provides that the court may, on motion, order sanctions for a party’s failure to 9 appear for deposition after being served with proper notice. The sanctions 10 “may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Fed. R. Civ. 11 P. 37(d)(3). Rule 37(b)(2)(A)(v) allows for “dismissing the action or proceeding 12 in whole or in part.” 13 Terminating sanctions are severe and are only justified where the 14 failure to produce stems from the “willfulness or bad faith” of the offending 15 party. Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011); see also In 16 re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1233 (9th 17 Cir. 2006) (finding willfulness where plaintiffs refused to timely furnish 18 requested material and unreasonably delayed completing a fact sheet that 19 was necessary for defendants to mount a defense). “Disobedient conduct not 20 shown to be outside the control of the litigant is sufficient to demonstrate 21 willfulness, bad faith, or fault.” Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th 22 Cir. 2003) (quoting Hyde & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 23 1994)). 24 The Ninth Circuit has created a five part test in considering whether a 25 dismissal or default is justified as a Rule 37 sanction: “(1) the public’s interest 26 in expeditious resolution of litigation; (2) the court’s need to manage its 1 favoring disposition of cases on their merits; and (5) the availability of less 2 drastic sanctions.” Thompson v. Hous. Auth. of City of L.A., 782 F. 2d 829, 3 831 (9th Cir. 1986); see also Conn. Gen. Life Ins. Co. v. New Images of Beverly 4 Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). These factors are not a series of 5 conditions precedent before the judge can act, but a way for the court “to 6 think about what to do.” In re PPA, 460 F.3d at 1226; see also Yourish v. Cal. 7 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“We may affirm a dismissal 8 where at least four factors support dismissal, or where at least three factors 9 strongly support dismissal.”). 10 II. DISCUSSION 11 A. The Public’s Interest in Expeditious Resolution of Litigation 12 Under the first of the Thompson factors, the Court must consider the 13 public’s interest in the expeditious resolution of the case. Conn. Gen. Life Ins. 14 Co., 482 F.3d at 1096. “Orderly and expeditious resolution of disputes is of 15 great importance to the rule of law. By the same token, delay in reaching the 16 merits, whether by way of settlement or adjudication, is costly in money, 17 memory, manageability, and confidence in the process.” In re PPA, 460 F.3d 18 at 1227. 19 After numerous attempts by Defendants to depose Plaintiff—originally 20 set for December 18, 2019; rescheduled for January 6, 2020; rescheduled for 21 January 15, 2020; rescheduled for January 23, 2020; rescheduled for January 22 31, 2020; rescheduled for April 09, 2020; rescheduled for June 10, 2020; and 23 finally set for June 12, 2020—Plaintiff has failed to attend or effectively 24 participate in her properly noticed depositions. During the slew of attempts 25 to depose Plaintiff, Defendants incurred costs due to Plaintiff’s unwillingness 26 to sit for deposition. Plaintiff’s inability or unwillingness to participate in 1 Not only has Plaintiff missed deadlines and continually requested 2 extensions, Plaintiff failed to make herself available both to her counsel and 3 to Defendants. Plaintiff has not provided the Court, or counsel, with any 4 justified excuse for her absence and there is no indication that any is 5 forthcoming. Plaintiff’s counsel cannot provide the Court with any 6 reasonable reassurance that Plaintiff intends to further prosecute her claims, 7 the Court finds any further delay unjustified. 8 Plaintiff’s failure to comply with the Court’s Order hinders the progress 9 of the case and the Court’s ability to manage its docket. Thus, even though 10 Plaintiff alleges she is willing to participate in good faith, the Court finds the 11 delays have already affected the public’s right to the “just, speedy, and 12 inexpensive determination of every action.” In re PPA, 460 F.3d at 1127. 13 Accordingly, this factor weighs in favor of terminating sanctions. Hyde & 14 Drath v. Baker, 24 F.3d 1162, 1173 (9th Cir. 1994) (affirming dismissal of 15 complaint was proper after clients repeatedly failed to attend court-ordered 16 depositions). 17 B. The Court’s Need to Manage its Docket 18 Next, the Court must evaluate the extent to which its ability to manage 19 its docket is impacted by Plaintiff’s continued noncompliance. See Conn. Gen. 20 Life Ins. Co., 482 F.3d at 1096. In Thompson, the Ninth Circuit stated that 21 “[d]istrict courts have inherent power to control their dockets. In the exercise 22 of that power they may impose sanctions including, where appropriate, 23 default or dismissal.” Thompson, 782 F. 2d at 831. The Thompson Court 24 further noted that while dismissal should “be imposed as a sanction only in 25 extreme circumstances,” the Ninth Circuit has “repeatedly upheld the 26 imposition of the sanction of dismissal for failure to comply with pretrial 1 Plaintiff brought this case on March 4, 2019. On June 17, 2019, the 2 Court filed a Scheduling Order regulating discovery and other pre-trial 3 proceedings. In the ensuing year, the case has not moved beyond the 4 discovery phase. The Court’s attempts to compel compliance from Plaintiff 5 have been unsuccessful. Monetary sanctions have proven unsuccessful to 6 deter Plaintiff from further disobedience. The Court is convinced that without 7 employing the drastic remedy of dismissal, the case will continue to stagnate. 8 As such, the Court’s ability to efficiently manage its docket has been 9 impaired and will continue to be impaired if this case is not dismissed. This 10 factor weighs in favor of dismissal. 11 C. The Risk of Prejudice to Defendant 12 Next, the Court must evaluate the risk of prejudice to the defendant. 13 See Conn. Gen. Life Ins. Co., 482 F.3d at 1096. “Prejudice normally consists 14 of loss of evidence and memory, it may also consist of costs or burdens of 15 litigation, although it may not consist of the mere pendency of the lawsuit 16 itself.” In re PPA, 460 F.3d at 1128 (internal citations omitted). “The law . . . 17 presumes prejudice from unreasonable delay." Id. at 1127. 18 As a general notion, Plaintiffs are responsible for moving cases toward 19 disposition on the merits at a reasonable pace and for identifying convincing 20 reasons why it is important for the case to be resolved on its merits. In re 21 Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994). However, this cannot be 22 accomplished using evasive or dilatory tactics. Id. 23 Plaintiff has not fulfilled her responsibility to move this case towards 24 disposition on the merits. Her actions in defiance of the Court’s Order, 25 unwillingness to be deposed, and lack of communication with counsel lead the 26 Court to believe Plaintiff has abandoned her claims. Defendants have been 1 production of lawfully requested discovery from Plaintiff. Defendants have 2 already been prejudiced by the time, effort, and expense needed to defend 3 this case and will continue to be prejudiced if this case proceeds. See Reyes v. 4 City of Glendale, 313 F. App’x 68, 70 (9th Cir. 2009) (noting length of delay 5 was a factor to consider under the prejudice inquiry). Accordingly, this factor 6 also weighs in favor of dismissal. 7 D. The Public Policy Favoring Disposition of Cases on Their 8 Merits 9 Under the fourth factor, the Court must consider the public policy 10 favoring the disposition of cases on the merits. Conn. Gen. Life Ins. Co., 482 11 F.3d at 1096. Generally, public policy favors disposition of cases on their 12 merits. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). 13 However, a “case that is stalled or unreasonably delayed by a party's 14 failure to comply with deadlines and discovery obligations cannot move 15 forward toward resolution on the merits.” In re PPA, 460 F.3d at 1128. “Thus, 16 this factor lends little support to a party whose responsibility it is to move a 17 case toward disposition on the merits but whose conduct impedes progress in 18 that direction.” Id. 19 Although Plaintiff avers that she is amenable to being deposed and to 20 moving the case forward, she has taken no measures to do so. Plaintiff’s 21 failure to attend her deposition, in direct defiance of the Court’s Order, 22 prevents this case from moving toward a resolution on the merits. This factor, 23 therefore, weighs in favor of dismissal. 24 E. The Availability of Less Drastic Sanctions 25 Finally, the Court considers the availability of less drastic sanctions. 26 Conn. Gen. Life Ins. Co., 482 F.3d at 1096. “There is no requirement that 1 dismissal is appropriate. The reasonable exploration of possible and 2 meaningful alternatives is all that is required.” Anderson v. Air W., Inc., 542 3 F.2d 522, 525 (9th Cir. 1976). When less drastic sanctions have already been 4 imposed and/or the court has previously warned the plaintiff of the possibility 5 of a dismissal, but these measures have had little or no effect, the 6 “consideration of alternatives” requirement has been satisfied. In re PPA, 460 7 F.3d at 1229. 8 Despite multiple opportunities, Plaintiff has taken no action to remedy 9 or cure her failure. After multiple failed attempts to depose Plaintiff, the 10 Court granted Defendants’ Motion to Compel her compliance and awarded 11 monetary sanctions. (See ECF No. 21). As of this Order, Plaintiff has yet to 12 make herself available for deposition and not paid the monetary sanctions. 13 Given Plaintiff’s complete failure to comply to the Court’s Order, less severe 14 sanctions are not feasible. Here, the Court can only conclude that Plaintiff 15 has abandoned prosecuting this case. Therefore, this factor weighs in favor 16 dismissal. 17 III. MONETARY SANCTIONS 18 In addition to terminating sanctions, Defendants request the imposition 19 of monetary sanctions. Defendants have provided evidence that they 20 incurred costs totaling $594.50 for court reporting and videography of the 21 abandoned deposition on June 12, 2020. (ECF No. 24-1 at 10). Defendants 22 also provide their costs and fees following their initial motion to compel in the 23 sum of $2,808.30. (Id. at 10-11). Further, Defendants seeks the costs of 24 bringing this instant motion in the sum of $2,352.90. (Id. at 11). Last, 25 Defendants reiterate that the Court’s prior award of discovery sanctions, in 26 the amount of $ 1,923.00, remains unpaid. (Id. at 8, 9). In sum, Defendants 1 In opposition, Plaintiff does not challenge Defendants’ monetary 9 ||request. (See ECF No. 30). Plaintiff only seeks to be excused from paying the 3 ||requested amount. (ECF No. 30 at 6). Plaintiff offers no challenge to the 4 ||reasonableness of Defendants’ request. 5 The Court finds Plaintiffs attorney fees, as well as cost incurred, to be 6 ||reasonable. Good cause appearing, this Court recommends Plaintiff be 7 ||sanctioned $7,687.70. 8 IV. CONCLUSION 9 For the foregoing reasons, the Court RECOMMENDS the District 10 || Court issue an Order: (1) Approving and adopting this Report and 11 ||Recommendation; (2) Directing that judgment be entered DISMISSING the 12 ||action WITH PREJUDICE; (38) Ordering Plaintiff to pay Defendants costs 13 |;and attorney’s fees, in the sum of $7,687.70. 14 IT IS HEREBY ORDERED that any written objection to this report 15 ||must be filed with the Court and served on all parties no later than August 16 |}19, 2020. The document should be captioned “Objections to Report and 17 || Recommendations.” 18 IT IS FURTHER ORDERED that any reply to the objections shall be 19 filed with the Court and served on all parties no later than August 26, 2020. 90 || The parties are advised that failure to file objections within the specified time 91 || may waive the right to raise those objections on appeal of the Court’s order. 992 || Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 23 IT IS SO ORDERED. Dated: August 12, 2020 Mitel by. [= Hon. Mitchell D. Dembin 26 United States Magistrate Judge 27