Kerry Boulton v. US Tax Lien Assn.

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KERRY BOULTON; et al., No. 19-15526
Plaintiffs-Appellants, D.C. No.
2:15-cv-02384-MCE-AC
v.
US TAX LIEN ASSOCIATION, LLC, a MEMORANDUM*
Nevada Limited Liability Company; SAEN
HIGGINS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted July 13, 2020**
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and TAGLE,*** District Judge.
This is a diversity action brought by Kerry Boulton, Ane Marie Lacy, William
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Hilda G. Tagle, United States District Judge for the
Southern District of Texas, sitting by designation.
Gamba, Luca Angelucci, and Jeremy Andrews (collectively, “Plaintiffs”) against US
Tax Lien Association, LLC and Saen Higgins (collectively, “USTLA”), alleging
tortious misrepresentations. After Plaintiffs and their counsel failed to comply with
several discovery and sanctions orders issued by a magistrate judge, the district court
accepted the recommendations of the magistrate judge and dismissed the complaint
with prejudice, ordering $21,767.50 in sanctions on counsel personally. We have
jurisdiction over Plaintiffs’ appeal under 28 U.S.C. § 1291 and affirm.
When considering terminating sanctions, we focus on “(1) the public’s interest
in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3)
the risk of prejudice to the party seeking sanctions; (4) the public policy favoring
disposition of cases on their merits; and (5) the availability of less drastic sanctions.”
Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th
Cir. 2007) (cleaned up). Terminating sanctions must be supported by a finding of
willfulness, fault, or bad faith. See Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334,
1337 (9th Cir. 1985).
The district court did not abuse its discretion in adopting the magistrate
judge’s recommendations and imposing terminating sanctions. See Valley Eng’rs,
Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1052 (9th Cir. 1998) (standard of review).
Plaintiffs’ prolonged and repeated noncompliance with the magistrate judge’s
discovery and scheduling orders undermined “the public’s interest in expeditious
2
resolution of litigation.” Conn. Gen. Life Ins. Co., 482 F.3d at 1096 (cleaned up).
The district court’s ability “to manage its dockets” was hampered by the need to
address USTLA’s repeated motions to compel and for sanctions. Id. (cleaned up).
USTLA was prejudiced by Plaintiffs’ refusal to comply with the district court’s
discovery orders. See Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir.
1990) (“Failure to produce documents as ordered . . . is considered sufficient
prejudice.”). The magistrate judge also imposed lesser sanctions twice before
recommending terminating sanctions, warning Plaintiffs each time that they might
face terminating sanctions. And, Plaintiffs’ repeated flouting of their discovery
obligations showed “willfullness, bad faith, and fault.” See Conn. Gen. Life Ins. Co.,
482 F.3d at 1097 (“Where a party so damages the integrity of the discovery process
that there can never be assurance of proceeding on the true facts, a case dispositive
sanction may be appropriate.” (cleaned up)). We also note that Plaintiffs doubly
forfeited any argument challenging the magistrate judge’s factual findings by failing
to object before the district court, Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.
1998), and by not addressing this failure to object on appeal, see, e.g., Burlington N.
& Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1093 n.3 (9th Cir. 2007).
With respect to monetary sanctions, the orders holding counsel personally
responsible were amply supported by the record, including counsel’s admissions that
he was at fault for failing to comply with discovery orders.
3
AFFIRMED.
4