Hill v. Alpine Sherriff Department

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 PERCY HILL also known as Case No.: 18cv2470-CAB-MDD PERCY EDWIN STOCKTON, [11] REPORT AND Plaintiff, 12 RECOMMENDATION GRANTING v. DEFENDANTS' MOTION FOR [13] TERMINATING SANCTIONS ALPINE SHERIFF [14] DEPARTMENT, et al., [ECF No. 69] 15 Defendants. [16] 17 This Report and Recommendation is submitted to United States 18 District Judge Cathy Ann Bencivengo pursuant to 28 U.S.C. § 636 (b)(1) and 19 Local Civil Rule 72.1(c) of the United States District Court for the Southern 20 District of California. 21 For the reasons set forth herein, the Court RECOMMENDS 22 Defendants’ motion for terminating sanctions1 be GRANTED and this case 23 be DISMISSED WITH PREJUDICE. [25] 26 1 Defendants caption their motion as a motion to dismiss pursuant to FRCP 41(b), or alternatively to compel Plaintiff to be deposed. Based on the substance of Defendants’ 1 I. INTRODUCTION 2 Percy Hill (“Plaintiff”), proceeding pro se, filed the operative Second 3 Amended Complaint against Defendants County of San Diego, Eric Garcia, 4 Cathy Allister, Freddy Herrero, Matthew Addenbrooke, and Officer Balinger2 5 (collectively, “Defendants”) on January 30, 2019. (ECF No. 8). Plaintiff 6 alleges excessive force under 42 U.S.C. §1983 and negligence. (Id.). 7 Presently before the Court is Defendants’ motion for terminating 8 sanctions on the ground that Plaintiff failed to appear for his deposition on 9 September 15, 2020 in violation of court orders and Federal Rule of Civil 10 Procedure 30. (ECF No. 69, hereinafter “Mtn.”). Alternatively, Defendants 11 request the Court compel Plaintiff to appear for deposition immediately. (Id.) 12 Defendants further move the Court for reasonable expenses incurred due to 13 Plaintiff’s failure to appear at the deposition. (Id.) Plaintiff filed an 14 opposition on December 2, 2020 in which he claims economic hardship and 15 requests to be deposed by remote means. (ECF No. 71, hereinafter “Oppo.”). 16 II. RELEVANT BACKGROUND 17 On March 21, 2019, the Court ordered the parties to make initial 18 disclosures as required by Fed. R. Civ. P. 26(a) prior to the Early Neutral 19 Evaluation Conference set for April 24, 2019. (ECF No. 12). The Court 20 issued a Scheduling Order Regulating Discovery and Other Pre-Trial 21 Proceedings on April 25, 2019. (ECF No. 14). On May 13, 2019, Plaintiff 22 filed a motion for a sixty-day continuance of the deadlines relating to 23 amending the pleadings, expert disclosures, contradictory or rebuttal 24 disclosures, and the deadline for all discovery. (ECF No. 15). The Court 25 granted the motion in part, extending the deadlines for expert disclosures, [26] 1 contradictory or rebuttal disclosures, and the deadline for all discovery, by 2 sixty days. (ECF No. 19). 3 On August 1, 2019, the parties filed a joint motion for determination of 4 a discovery dispute in which Defendants requested that the Court compel 5 Plaintiff to produce his overdue initial disclosures. (ECF No. 20). On August 6 2, 2019, the Court ordered Plaintiff to serve his initial disclosures on 7 Defendants by August 12, 2019. (ECF No. 21). The Court reminded Plaintiff 8 that he must properly serve all discovery requests upon Defendants in 9 accordance with the applicable rules. (Id. at 2). Plaintiff did not provide his 10 initial disclosures. On September 9, 2019, Defendants filed a Motion for 11 Sanctions against Plaintiff. (ECF No. 22). The Court granted the motion in 12 part, ordering Plaintiff to pay the County of San Diego $1,518.00 by 13 November 8, 2019. (ECF No. 32). To date, Plaintiff has not served initial 14 disclosures upon Defendants. (ECF No. 69-1 at 3). 15 On April 10, 2020, Judge Cathy Ann Bencivengo dismissed this case 16 without prejudice. (ECF No. 38). The case was dismissed due to Plaintiff’s 17 failure to prosecute, failure to appear at a telephonic hearing on April 10, 18 2020, and failure to contact the Court or counsel for Defendants. (Id.). 19 Plaintiff moved the Court to reopen the case which the Court deemed a 20 motion for relief from judgment or order pursuant to Fed. R. Civ. P. 60. (ECF 21 No. 45). In consideration of Plaintiff’s statement that he was incarcerated 22 since October 25, 2019 and had attempted to contact Defendants’ counsel and 23 the Court to provide his updated address, the case was reopened. (Id.). The 24 Court noted that it was not informed of Plaintiff’s updated address until June 25 16, 2020 even though Plaintiff was required to provide the Court and 26 opposing parties with his current address. (ECF No. 45). Thereafter, the 1 ordered sanctions to March 19, 2021. (ECF No. 52). 2 At a Telephonic Status Conference on August 12, 2020, the Court 3 instructed Plaintiff that he would have to travel to San Diego for his 4 deposition. (ECF No. 60). The Court extended the discovery period to 5 October 11, 2020 “for the sole purpose of Defendants obtaining Plaintiff’s 6 deposition” and to give Plaintiff additional time to travel to San Diego. (ECF 7 Nos. 52; 60). Defendants then served Plaintiff with a deposition notice via 8 mail on August 17, 2020 for September 15, 2020. (ECF No. 69-1 at 8-11). 9 On September 3, 2020, Plaintiff filed a motion to be deposed remotely, 10 arguing he lacked the means necessary to travel to San Diego. (ECF No. 57). 11 Defendants filed a response in opposition. (ECF No. 59). The Court 12 considered the circumstances and denied the request. The Court explained 13 that, absent agreement of the parties, Plaintiff must attend his deposition in 14 person in San Diego. (ECF No. 60). The Court noted that Plaintiff filed suit 15 in San Diego and then voluntarily relocated to Arizona. (Id.). Further, the 16 Court instructed Plaintiff at the August 12, 2020 Status Conference that the 17 deposition would be in San Diego and that the Court extended the discovery 18 deadline to give Plaintiff more time to travel to San Diego. (Id.). Plaintiff did 19 not object to the Court’s order. (See Docket). 20 When counsel for Defendants attempted to confirm Plaintiff’s 21 appearance at the September 15, 2020 deposition, Plaintiff informed her that 22 he would not be appearing. (ECF No. 69-1 at 16). In attempt to reschedule 23 the deposition at a convenient date for Plaintiff, counsel for Defendants asked 24 Plaintiff when he would appear. (Id.). Plaintiff “indicated he would appear 25 in San Diego on the 5th of ‘Neverary’” and then hung up the call prematurely. 26 (Id.). Plaintiff did not appear for his properly noticed deposition in San Diego 1 been taken. (Id. at 3). 2 III. LEGAL STANDARD 3 Federal Rule of Civil Procedure 37(d) authorizes the Court “to impose a 4 wide range of sanctions when a party fails to comply with the rules of 5 discovery or with court orders enforcing those rules.” Wyle v. R.J. Reynolds 6 Indus., Inc., 709 F.2d 585 , 589 (9th Cir. 1983). The Court may sanction the 7 party by “prohibiting the disobedient party from supporting or opposing 8 designated claims or defenses, or from introducing designated matters into 9 evidence,” “staying further proceedings” until the party has complied with 10 discovery requirements, and “dismissing the action or proceeding in whole or 11 in part.” Fed. R. Civ. P. 37(d)(3) (incorporating sanctions from Fed. R. Civ. P. 12 37(b)(2)(A)(i)-(vi)). 13 Rule 37 allows for terminating sanctions that dismiss a plaintiff’s action 14 where there has been willfulness, bad faith, or fault. Fed. R. Civ. P. 15 37(b)(2)(A)(v); Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 , 16 640 (1976). “Disobedient conduct not shown to be outside the control of the 17 litigant is sufficient to demonstrate willfulness, bad faith, or fault.” 18 Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003) (internal quotation 19 marks omitted). Courts may consider not only the effect of sanctions on the 20 party being disciplined, but also the deterrent effect on future litigants and 21 their counsel. Nat’l Hockey League, 427 U.S. at 643 . 22 In determining whether to dismiss an action pursuant to Rule 37, the 23 Court considers: (1) the public’s interest in expeditious resolution of 24 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice 25 to the defendants; (4) the public policy favoring disposition of cases on the 26 merits; and (5) the availability of less drastic sanctions. Henderson v. 1 these same factors when deciding whether it is appropriate to dismiss a case 2 for lack of prosecution under Fed. R. Civ. P. 41. In re Eisen, 31 F.3d 1447 , 3 1451 (9th Cir. 1994). 4 IV. DISCUSSION 5 Defendants move the Court to dismiss Plaintiff’s case for noncompliance 6 with court orders and for failure to appear at his deposition. (Mtn.). In 7 opposition, Plaintiff requests to be deposed by remote means.3 (Oppo.). 8 A. Willfulness, Bad Faith, or Fault 9 Disobedient conduct not shown to be outside the party's control is 10 sufficient to establish willfulness, bad faith, or fault. Jorgensen v. Cassiday, [11] 320 F.3d 906, 912 (9th Cir. 2003) (citing Hyde & Drath v. Baker, 24 F.3d 12 1162, 1166 (9th Cir. 1994)). Wrongful intent is not required. Sanchez v. 13 Rodriguez, 298 F.R.D. 460, 463 (C.D. Cal. 2014). "Delay, failure to appear for 14 depositions, failure to answer interrogatories resulting from a party being out 15 of town, and misunderstanding a party's own counsel are not matters outside 16 of a party's control." Nat'l Corporate Tax Credit Funds III v. Potashnik, No. 17 CV 07-3528 PSG (FMOx), 2010 U.S. Dist. LEXIS 19614 , at *13 (C.D. Cal. 18 Feb. 4, 2010) (citing Henry v. Gill Indus., Inc., 983 F.2d 943, 949 (9th Cir. 19 1993)). 20 Plaintiff has not demonstrated that his repeated failure to comply with 21 this Court's orders to provide his initial disclosures and sit for his deposition [23] 3 Plaintiff cites the COVID-19 pandemic and expanded use of telephonic hearings and 24 court proceedings as a further reason the Court should permit him to be deposed telephonically. (Oppo.). Plaintiff has not expressed any health or safety concerns 25 regarding the deposition. In his prior Motion to Schedule Defense Deposition Telephonically, filed on September 3, 2020, Plaintiff made no mention of concerns related 26 to COVID-19. (ECF No. 57). Accordingly, this case is distinct from other recent cases in which parties have requested remote depositions due to safety concerns related to COVID1 in San Diego was "outside his control." See Hyde & Drath v. Baker, 24 F.3d 2 1162, 1167 (9th Cir. 1994). 3 Plaintiff argues his noncompliance is caused by financial hardship. 4 (Oppo.). The Court already considered Plaintiff’s financial circumstances and 5 granted Plaintiff additional time to travel to San Diego from Arizona for his 6 deposition. (ECF No. 60). Plaintiff made no attempt to appear for his noticed 7 deposition in San Diego, California and has refused to cooperate with Defense 8 counsel to reschedule the deposition for a later date. (ECF No. 69-1 at 3) 9 (“Defendants’ counsel made several efforts to meet and confer with Plaintiff 10 regarding a convenient date for his deposition, reminding him of the Court’s 11 Order that he appear in person….Plaintiff refused to provide a date on which 12 he could travel to San Diego for his deposition.”). Additionally, Plaintiff did 13 not object to the Court’s Order requiring the deposition to be taken in San 14 Diego. As such, the Court finds Plaintiff’s failure to appear for his deposition 15 pursuant to court orders was within his control, and therefore sufficient to 16 establish willfulness, bad faith, or fault, such that terminating sanctions are 17 warranted. See Diaz v. Vigil, No. 1:03-cv-05108-OWW-LJO PC, 2007 U.S. 18 Dist. LEXIS 11709 (E.D. Cal. Feb. 6, 2007) (granting Defendant’s motion for 19 terminating sanctions where pro se plaintiff who was deported to Mexico 20 failed to appear for his noticed deposition in Sacramento and “expressed no 21 willingness to make arrangements to be deposed.”). 22 B. Five-factor Test 23 The Court next considers whether terminating sanctions are 24 appropriate. 25 1. The Public’s Interest in Expeditious Resolution of 26 Litigation 1 favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983 , 990 (9th Cir. 2 1999). This case has been pending since 2018 and has over 70 docket entries 3 in what should be a relatively straightforward excessive force and negligence 4 claim. (See Docket). As such, this factor favors dismissal. 5 2. The Court’s Need to Manage its Docket 6 The second factor weighs in favor of dismissal where the Court is 7 required to address a litigant’s failure to comply with discovery obligations. 8 See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The Ninth 9 Circuit has “repeatedly upheld the imposition of the sanction of dismissal for 10 failure to comply with pretrial procedures mandated by local rules and court 11 orders.” Thompson v. Housing Authority of Los Angeles, 782 F. 2d 829, 831 . 12 This action was removed to federal court on October 26, 2018. (ECF No. 13 1). On April 25, 2019, the Court filed a Scheduling Order regulating 14 discovery and other pre-trial proceedings. (ECF No. 14). The case has not 15 moved beyond the discovery phase. This is Defendants’ second motion for 16 sanctions regarding Plaintiff’s failure to comply with the Court’s discovery 17 orders. Moreover, Defendants’ motions were brought in good faith. The 18 Court’s ability to efficiently manage its docket will be impaired if this case is 19 not dismissed. Accordingly, this factor favors dismissal. 20 3. The Risk of Prejudice to Defendant 21 “To prove prejudice, a defendant must establish that plaintiff’s actions 22 impaired defendant’s ability to proceed to trial or threatened to interfere with 23 the rightful decision of the case.” Pagtalunan at 642 (citing Malone v. U.S. 24 Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)). Though the pendency of a 25 lawsuit on its own is insufficient prejudice to warrant dismissal, 26 “[u]nnecessary delay inherently increases the risk that witnesses’ memories 1 York, 392 U.S. 40, 57 (1968)). Plaintiff’s conduct in failing to appear for his 2 deposition and failing to provide his initial disclosures has prevented 3 Defendants from ascertaining the necessary facts to defend against his 4 claims. This factor favors dismissal. 5 4. The Public Policy Favoring Disposition of Cases on 6 Their Merits 7 The fourth factor—public policy favoring disposition of cases on their 8 merits—is strong and weighs against dismissal. Pagtalunan, 291 F.3d at 9 643. However, this factor “lends little support” where the behavior of the 10 party against whom dismissal is sought impeded disposition on the merits. 11 In re: Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217 , 1228 12 (9th Cir. 2006). The public policy favoring disposition of cases on their merits 13 is not furthered by litigants who refuse to provide discovery needed for 14 preparation of a defense. Sanchez, 298 F.R.D. at 465 . 15 Plaintiff’s failure to attend his deposition and to serve his initial 16 disclosures on Defendants, in direct defiance of the Court’s orders, has 17 delayed the discovery process and has prevented this case from moving 18 toward a resolution on the merits. Accordingly, the Court finds that this 19 factor does not weigh against dismissal. 20 5. The Availability of Less Drastic Sanctions 21 A district court must consider the impact of a sanction and whether a 22 less severe sanction would adequately address a party’s failure to engage in 23 the discovery process. Malone, 833 F.2d at 131-32 . The Ninth Circuit has 24 explained that “[a] district court need not exhaust every sanction short of 25 dismissal before finally dismissing a case, but must explore possible and 26 meaningful alternatives.” Henderson, 779 F.2d at 1424. 1 warranted. Plaintiff has expressed that he is unwilling to attend a deposition 2 in San Diego at any future date, despite having been ordered to do so by the 3 Court. (ECF No. 69-1 at 16) (declaring that Plaintiff said he would attend a 4 deposition on the 5th of “Neverary”). The Court has already ordered Plaintiff 5 to pay monetary sanctions as a consequence of his failure to serve his initial 6 disclosures on Defendants. (ECF No. 32). Additional monetary sanctions 7 would be ineffective because of Plaintiff’s likely inability to pay. (Oppo.). The 8 Court admonished Plaintiff about his discovery obligations and warned him 9 about the consequences of noncompliance, but Plaintiff has indicated no 10 intent to comply with any rulings or orders by the Court. The Court finds 11 that there are no other, lesser sanctions that would be satisfactory or 12 effective. 13 6. Conclusion 14 Upon due consideration of the five factors, the Court finds dismissal of 15 this case is warranted. 16 V. MONETARY SANCTIONS 17 Defendants request the imposition of monetary sanctions in addition to 18 terminating sanctions. (Mtn. at 2). As monetary sanctions, Defendants 19 request $1,265.00 as fees and costs associated with the time spent preparing 20 this motion. (Id.). 21 Federal Rule of Civil Procedure 37 requires “the party failing to act…to 22 pay the reasonable expenses, including attorney’s fees, caused by the failure, 23 unless the failure was substantially justified or other circumstances make an 24 award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). 25 As noted, Plaintiff is proceeding pro se and has repeatedly described his 26 precarious financial circumstances. (ECF Nos. 57; 71). As such, it is unlikely 1 ||failure to appear for his deposition in San Diego. Accordingly, it would be 9 unjust to impose additional monetary sanctions in this instance. 3 VI. CONCLUSION 4 For the reasons set forth above, the Court RECOMMENDS that 5 || Defendants’ motion for terminating sanctions be GRANTED and that this 6 ||case be DISMISSED WITH PREJUDICE. 7 IT IS ORDERED that no later than February 9, 2021, any party to 8 ||this action may file written objections with the Court and serve a copy on all 9 ||parties. The document should be captioned “Objections to Report and 10 || Recommendation.” 11 IT IS FURTHER ORDERED that any reply to the objections shall be 12 ||filed with the Court and served on all parties no later than February 16, 13 ||2021. The parties are advised that failure to file objections within the 14 specified time may waive the right to raise those objections on appeal of the 15 ||Court’s order. See Turner v. Duncan, 158 F.3d 449 , 455 (9th Cir. 1988). 16 IT IS SO ORDERED. Dated: January 21, 2021 Vitel ». [ Hon. Mitchell D. Dembin 19 United States Magistrate Judge