Goss v. Shepherd

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Brett William Goss, No. CV-21-00234-PHX-MTL (JFM) 10 Plaintiff, ORDER 11 v. 12 J Adam Shepherd, et al., 13 Defendants. [14] 15 In this civil rights action, Goss sued Gila County Sheriff Shepherd for his failure 16 to prevent the spread of COVID-19 in the Gila County Jail. 17 Defendant seeks dismissal of this action based on Plaintiff’s failure to participate 18 in discovery, comply with Court Orders, and delays in updating his address (Doc. 36). 19 Plaintiff did not respond to the motion. The Court will grant the motion and dismiss this 20 action without prejudice. 21 In September 2021, Defendant issued discovery requests to Plaintiff; the responses 22 were due on October 4, 2021. Although Plaintiff indicated he would mail responses, 23 none were received. Defendant inquired and sought Plaintiff’s responses by October 25, 24 2021, but Plaintiff did not submit any responses or respond to Defendant’s inquiry. 25 Defendant filed a motion to compel on November 1, Plaintiff did not respond, and the 26 Court granted the motion, and directed that Plaintiff must serve his responses to 27 interrogatories, request for production, and request for admissions no later than 28 December 14. Plaintiff failed to comply, and Defendant seeks dismissal of this action for 1 failure to prosecute. 2 In Societe Internationale Pour Participations Industrielles et Commerciales, S.A. 3 v. Rogers, 357 U.S. 197 (1958), the Supreme Court held that the question of whether 4 dismissal should be ordered because of noncompliance with a discovery order “depends 5 exclusively upon Rule 37” and that “[t]here is no need to resort to Rule 41(b).” Id. at 6 207. Rule 37(b)(2)(A) empowers the Court to issue appropriate sanction orders when a 7 party fails to comply with discovery orders, including an order that the subject matter of 8 the discovery shall be taken to be established in accordance with the defendant’s defense, 9 or that the plaintiff may not support or oppose designated claims or defenses or introduce 10 designated matters into evidence, or dismissing the action in whole or in part, or finding 11 the plaintiff to be in contempt of court. Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii); see also 12 Roadway Express v. Piper, 447 U.S. 752, 763 (1980). The Court retains broad discretion 13 in selecting the appropriate sanction, but if the sanction ordered is less than dismissal, the 14 plaintiff’s noncompliance need not be proven to be willful or in bad faith. See, e.g., Von 15 Brimer v. Whirlpool Corp., 536 F.2d 838 , 843–44 (9th Cir. 1976); see also Societe 16 Internationale, 357 U.S. at 208 . If, however, the contemplated sanction is dismissal, 17 dismissal is appropriate only if the plaintiff's noncompliance is “due to wilfulness, bad 18 faith or fault.” Henry v. Gill Industries, 983 F.2d 943, 946 (9th Cir. 1993) (citation 19 omitted); see also Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 20 1091, 1096 (9th Cir. 2007). This requirement, however, does not require a finding of 21 wrongful intent or any particular mental state. Rather, “[d]isobedient conduct not shown 22 to be outside the control of the litigant is sufficient to demonstrate willfulness, bad faith, 23 or fault.” Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003) (citation omitted); 24 see also Henry, 983 F.2d at 948 (same). 25 Conduct outside of Plaintiff’s control would counsel against a finding of 26 willfulness. See Jorgensen, 320 F.3d at 912 . But Plaintiff’s refusal to respond in any 27 way to Defendant’s discovery requests, inquiry, and the Order on the motion to compel is 28 not outside his control. The Court, therefore, considers Plaintiff’s continued recalcitrance 1 and refusal to respond in any meaningful way to Defendant’s discovery requests to be 2 willful. Henry, 983 F.2d at 946 (dismissal is appropriate if the plaintiff's noncompliance 3 is “‘due to wilfulness, bad faith or fault.’”) (citation omitted). 4 Further, whenever contemplating dismissal as a sanction, the Court must consider 5 the following five factors: “(1) the public’s interest in expeditious resolution of litigation; 6 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 7 the public policy favoring disposition of cases on their merits and (5) the availability of 8 less drastic sanctions.” Henry, 983 F.2d at 948 (applying Henderson factors to Rule 37 9 sanction of default for failure to comply with discovery rules). 10 Here, the first two factors favor dismissal. “[T]he public’s interest in expeditious 11 resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983 , 12 990 (9th Cir. 1999). Plaintiff’s failure to participate in the discovery process precludes 13 this case from proceeding. 14 The third factor weighs in favor of dismissal. “[T]he failure to prosecute 15 diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of 16 actual prejudice to the defendant . . . .” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) 17 (internal quotation omitted). 18 Public policy favors disposition of cases on their merits, so the fourth factor 19 weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 20 The fifth factor requires the Court to consider whether a less drastic alternative is 21 available. But the Court need not exhaust every sanction short of dismissal before finally 22 dismissing a case. See Henderson, 779 F.2d at 1424. The Court finds that the only less 23 drastic sanction available is dismissal without prejudice. See Fed. R. Civ. P. 41(b) 24 (unless otherwise ordered, dismissal under Rule 41(b) operates as an adjudication on the 25 merits); see also Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984) (“dismissal without 26 prejudice is a more easily justified sanction for failure to prosecute”). 27 In sum, the five-factor analysis weighs in favor of dismissal. Due to Plaintiff’s 28 failure to respond to Defendant’s discovery requests or comply with the Court’s Order, || the Court will grant Defendant’s motion to dismiss and dismiss the Complaint without prejudice.! 3 IT IS THEREFORE ORDERED that the reference to the Magistrate Judge is withdrawn as to Defendant’s Motion to Dismiss (Doc. 36), and the motion is granted as 5 || discussed herein. This action is dismissed without prejudice, and the Clerk of Court must 6 || enter judgment accordingly. 7 Dated this 11th day of March, 2022. [8] Wicheal T. Fburde Michael T. Liburdi 11 United States District Judge [26] 27 □ 28 ' Because the Court finds that Plaintiffs discovery violations support dismissal, the Court need not reach Plaintiff's general failure to prosecute or his prior failure to update his address. -4-