Dr. Lokesh Tantuwaya MD Inc. v. JetSuite, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] Case No.: 19-cv-49-W-BLM 11 DR. LOKESH TANTUWAYA MD, INC. 12 Plaintiff, ORDER GRANTING DEFENDANTS JETSUITE, INC. AND SUPERIOR AIR 13 v. CHARTER LLC’S MOTION FOR MONETARY SANCTIONS AND REPORT 14 JETSUITE, INC. and SUPERIOR AIR AND RECOMMENDATION FOR ORDER CHARTER, LLC 15 GRANTING DEFENDANTS’ MOTION Defendants. FOR TERMINATING SANCTIONS AND 16 TO DISMISS ACTION [17] [ECF No. 36] [18] 19 Currently before the Court is Defendants JetSuite, Inc. and Superior Air Charter, LLC’s 20 (“Defendants”) October 25, 2023 Motion for Monetary and Terminating Sanctions and to Dismiss 21 Action Pursuant to Fed. R. Civ. P. 37(b)(2) (“MTD”). ECF No. 36. For the reasons set forth below, 22 this Court RECOMMENDS that Defendants’ MTD be GRANTED. 23 PROCEDURAL BACKGROUND 24 On January 8, 2019, Defendants JetSuite Inc. (“JetSuite”) and Superior Air Charter, LLC 25 (“SAC”) removed this action from Superior Court of California, County of San Diego. ECF No. 1. 26 On February 15, 2019, Defendants answered Plaintiff’s Complaint. ECF No. 6. On March 25, 27 2019, Magistrate Judge Major held a Case Management Conference and subsequently issued a scheduling order regulating all pre-trial and discovery deadlines. ECF Nos. 9, 10. On April 26, 1 2019, Defendants filed a Motion to Stay Civil Action Pending Resolution of Criminal Proceedings, 2 which was granted by District Judge Thomas J. Whelan on August 19, 2019. See ECF Nos. 11, 3 14. On June 2, 2020, Defendant SAC filed a notice of Bankruptcy Filing. See ECF No. 17. On 4 December 13, 2022, District Judge Whelan vacated the stay on the case. ECF No. 25. On January 5 23, 2023, Magistrate Judge Major issued an amended scheduling order regulating pre-trial and 6 discovery deadlines. ECF No. 29. 7 On August 18, 2023, counsel for Defendants contacted the Court regarding a discovery 8 dispute. ECF No. 32 at 1; see Hon. Barbara L. Major Chamber Rules-Civil Cases, Rule V(A). 9 Despite counsel for Defendant notifying Plaintiff’s counsel about the August 18, 2023 discovery 10 conference call seventy-two (72) hours in advance pursuant to the undersigned Judge’s 11 Chamber Rules, Plaintiff’s counsel did not participate in the discovery conference call. Id.; see 12 Hon. Barbara L. Major Chamber Rules-Civil Cases, Rule V(B). The Court issued an Order Setting 13 a Briefing Schedule on August 18, 2023 regarding the discovery dispute. ECF No. 32. On August 14 21, 2023, Defendants filed a Motion to Compel Responses to Discovery Pursuant to Fed. R. Civ. 15 P. 37 (a) and Request for Monetary and Terminating Sanctions (“MTC”). ECF No. 33. Plaintiff did 16 not file an Opposition. See Docket. Defendants filed a reply on September 11, 2023. ECF No. 17 34. 18 On September 27, 2023, the Court entered an Order Granting Defendants’ Motion to 19 Compel Responses to Discovery and Imposing Monetary Sanctions. ECF No. 35. Plaintiff was 20 ordered to produce responsive documents to Defendants’ Requests for Production, set one, Nos. 21 1, 10-11, 13, 16-19, 22-24, 27-28, 31-34, 38-39 and to provide substantive, complete responses 22 to Defendant JetSuite’s Interrogatories, set one, without objection within fourteen (14) days of 23 the order. ECF No. 34 at 11. In addition, the Court imposed monetary sanctions and ordered 24 Plaintiff and Plaintiff’s counsel, James McDanel of the Law Offices of James McDanel, to pay 25 $1,425.00 to Defendants by October 13, 2023 for their failure to respond to Defendants’ written 26 discovery, engage in meet and confer efforts, and respond to the MTC. Id. Plaintiff’s counsel 27 was ordered to file a declaration of payment by October 20, 2023. Id. 1 Plaintiff failed to provide responsive documents and interrogatory responses pursuant to 2 this Court’s September 27, 2023 order. MTD at 4; Declaration of Laura M. Booth in Support of 3 Motion for Terminating Sanctions and to Dismiss Action (“Booth Decl.”) at ¶ 25. Plaintiff’s counsel 4 failed to file a declaration of payment. See Docket; Booth Decl. at ¶ 26. Plaintiff and Plaintiff’s 5 counsel did not pay the monetary sanction, and, on October 30, 2023, the Court issued an Order 6 to Show Cause Why Sanctions Should Not Be Imposed (“OSC”) wherein the Court ordered 7 Plaintiff’s counsel to appear and set the OSC hearing for November 15, 2023. ECF No. 37 at 1. 8 The OSC hearing was held on November 15, 2023, at 2:00 p.m. in Courtroom 2A, United States 9 District Court, 940 Front Street, San Diego, California 92101. ECF No. 39. Plaintiff’s counsel did 10 not appear.1 Id. Plaintiff’s counsel has not filed a motion seeking to withdraw from his 11 representation of Plaintiff. See Docket. 12 Defendants filed the instant MTD on October 25, 2023. ECF No. 36. Plaintiff’s response 13 was due on or before November 17, 2023. ECF No. 38 at 1. Plaintiff did not file an opposition. 14 See Docket. Defendants did not file a Reply in Support of their MTD. Id. 15 DISCOVERY BACKGROUND 16 On March 22, 2019, Defendants served Plaintiff with Requests for Production of 17 Documents, set one. MTD at 2; ECF No. 36-2. On May 2, 2019, Plaintiff served written responses 18 to Defendants’ Requests for Production, set one, (“RFP”) and committed to produce responsive 19 documents to RFPs 1, 9-11, 13, 16-19, 22-24, 27-28, 31-34, 38-39 after any stay of the case 20 concluded. Id.; ECF No. 36-3. On March 6, 2023, Defendant JetSuite served Interrogatories, set 21 one, on Plaintiff. Id.; ECF No. 36-4. 22 On March 7, 2023, Defendants requested Plaintiff comply with his prior commitment to 23 produce responsive documents to Defendants’ RFPs. Id. at 3; ECF No. 36-5. Plaintiff’s counsel [24] 25 1 Plaintiff’s counsel called Magistrate Judge Major’s chambers at 1:56 p.m. on November 15, 2023, four (4) minutes prior to the start of the OSC, to request a telephonic appearance at the [26] OSC hearing. Judge Major’s Judicial Law Clerk informed Plaintiff’s counsel that he was ordered 27 to appear in person so no telephonic appearance would be allowed, and that he could file a declaration explaining why he failed to appear in person as ordered. Plaintiff’s counsel did not 1 responded on March 15, 2023, stating that he was “in the process of communicating” with 2 Plaintiff, and would “follow[] up on the production of documents.” Id.; ECF No. 36-6. Plaintiff’s 3 counsel also requested a 30-day extension for the Request for Production, set one. Id. After that 4 30-day period passed, Defendants sent another request for Plaintiff to comply with his prior 5 commitment to produce responsive documents. Id.; Booth Decl. at ¶ 11. Defendants state they 6 did not receive a response to their multiple attempts to communicate with Plaintiff’s counsel and 7 have not received any responsive documents. Id. at 4; Booth Decl. at ¶¶ 18, 25. 8 Per this Court’s January 20, 2023 Scheduling Order, the parties’ expert designations were 9 due July 14, 2023, and supplemental designations were due August 11, 2023. ECF No. 29 at 2. 10 Defendants served their expert designation on July 14, 2023. MTD at 3; ECF No. 36-8. 11 Defendants state that, as of October 25, 2023, they have not been served with Plaintiff’s expert 12 designation. MTD at 3; Booth Decl. at ¶ 15. 13 On August 10, 2023, Defendants notified Plaintiff that they intended to file a motion to 14 compel responses and/or dismiss this action. MTD at 3; ECF No. 36-9. The following day, 15 Defendants again contacted Plaintiff and expressed a willingness and availability to meet and 16 confer. Id.; ECF No. 36-10. On August 15, 2023, Defendants contacted Plaintiff again, 17 attempting to schedule an informal discovery conference call with Magistrate Judge Major’s law 18 clerk regarding Defendants’ proposed motion to compel. Id.; ECF No. 36-11. Defendants stated 19 that they did not receive a response to their correspondence or request for participation in an 20 informal discovery conference. Id.; Booth Decl. at ¶ 18. Further, according to the Court’s January 21 23, 2023, Scheduling Order, all expert discovery was to be completed by November 10, 2023. 22 See ECF No. 29 at 3. 23 Despite this Court’s September 27, 2023 order granting Defendants’ MTC discovery, 24 Plaintiff failed to respond to Defendant JetSuite’s interrogatories and failed to produce any 25 responsive documents. MTD at 4; Booth Decl. at ¶ 25; see also ECF No. 35. 26 LEGAL STANDARD 27 A. Federal Rule of Civil Procedure 16(f) 1 t3h7e( b)c(o2u)r(tA )(mii)a-y( viiis),s uife a apnayr tyj uosrt itso radtetorsr,n eiyn:c l(uAd)i nfagi lst htoo saep paeuatrh aotr izsechde dbuyl inRgu oler other pretrial conference; (B) is substantially unprepared to participate—or does 2 not participate in good faith in the conference; or (C) fails to obey a scheduling or other pretrial order. [3] 4 Fed. R. Civ. P. 16(f)(1). “Instead of or in addition to any other sanction, the court must order 5 the party, its attorney, or both to pay the reasonable expenses—including attorney’s fees— 6 incurred because of any noncompliance with this rule, unless the noncompliance was 7 substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. 8 P. 16 (f)(2). 9 B. Federal Rules of Civil Procedure 37 & 41 10 Rule 37 of the Federal Rules of Civil Procedure empowers this Court to issue sanctions 11 against a party for failing to make disclosures or cooperate in discovery. A court may order 12 sanctions if “a party, after being properly served with interrogatories under Rule 33 or a request 13 for inspection under Rule 34, fails to serve its answers, objections, or written response.” Fed. R. 14 Civ. P. 37(d)(1)(A)(ii). If a party “fails to obey an order to provide or permit discovery, including 15 an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue” an 16 appropriate sanction order. Fed. R. Civ. P. 37(b)(2)(A). “The Ninth Circuit has held that a party’s 17 failure to produce documents as ordered is considered sufficient prejudice to establish 18 sanctionable conduct.” Hullinger v. Anand, 2016 WL 7444620 , at *8 (C.D. Cal. Aug. 19, 2016) 19 (quoting Apple Inc. v. Samsung Elcs. Co., Ltd., 2012 WL 2862613 , at *1-2 (N.D. Cal. July 11, 20 2012)). Rule 37 authorizes a court to consider and impose the following sanctions: 21 (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; 22 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; 23 (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; 24 (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or 25 (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. [26] 27 Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). 1 Dismissal is a harsh penalty that “should be imposed only in extreme circumstances.” 2 Meeks v. Nunez, 2017 WL 908733 , at *10 (S.D. Cal. Mar. 8, 2017) (quoting Wyle v. R.J. Reynolds 3 Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983)). Under Rule 37, terminating sanctions are 4 only appropriate if the conduct of the disobedient party is “due to willfulness, bad faith, or fault 5 of the party.” Id. (quoting United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 6 F.2d 600, 603 (9th Cir. 1988) (citation omitted)). 7 Pursuant to Fed. R. Civ. P. 41(b), “[i]f the plaintiff fails to prosecute or to comply with 8 these rules or a court order, a defendant may move to dismiss the action or any claim against 9 it.” Fed. R. Civ. Proc. 41(b). “Dismissal under Rule 41(b) is a sanction, to be imposed only in 10 ‘extreme circumstances.’” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1063 (9th Cir. 2004) 11 (quoting Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996) and United States 12 ex rel. Wiltec Guam, Inc., 857 F.2d at 603). A dismissal for lack of prosecution must be 13 supported by a showing of unreasonable delay. Ortega v. Kimble, 2022 WL 4376784 , at *1 (D. 14 Arizona, Sep. 22, 2022) (quoting Nealey v. Transportation Maritima Mexicana, S.A., 662 F.2d 15 1275, 1280 (9th Cir.1980)). 16 The Ninth Circuit has set forth five factors to be considered by the court in selecting the 17 appropriate sanction under both Rule 37 and Rule 41: 18 (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) 19 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. [20] 21 Hullinger, 2016 WL 7444620 , at *8 (quoting Valley Engineers Inc. v. Electyric Engineering Co., [22] 158 F.3d 1051, 1057 (9th Cir. 1998)); see also Ferdik v. Bonzelet, 963 F.2d 1258 , 1261 (9th Cir. 23 1991) (quoting Thompson v. Housing Authority of City of Los Angeles, 782 F.2d 829, 831 (9th 24 Cir. 1986)). This test is a disjunctive balancing test, so not all five factors must support dismissal. 25 See Valley Eng’rs Inc., 158 F.3d at 1051 (observing that the five-factor test “amounts to a way 26 for a district judge to think about what to so, not a series of conditions precedent” to dismissal); 27 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (explaining that dismissal is 1 dismissal). When a court order is violated, the first two factors support terminating sanctions 2 while the fourth factor, the public policy favoring disposition of the cases, does not support 3 dismissal. See Adriana Int’l Corp v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990); see also 4 Ferdik v. Bonzelet, 963 F.2d 1258 , 1261 (9th Cir. 1991). Therefore, the third and fifth factors 5 are ultimately determinative of the result. Adriana Int’l Corp., 913 F.2d at 1412 . When 6 considering evidentiary, issue or terminating sanctions, factors three and five “become 7 particularly important.” Id. 8 C. Civil Local Rule 83.1 9 Civil Local Rule 83.1 addresses sanctions for noncompliance with rules: 10 Failure of counsel, or of any party, to comply with these rules, with the Federal Rules of Civil or Criminal Procedure, or with any other of the Court may be grounds 11 for imposition by the Court of any and all sanctions authorized by statute or rule or within the inherent power of the Court, including, without limitation, dismissal 12 of any actions, entry of default, finding of contempt, imposition of monetary sanctions or attorneys’ fees and costs, and other lesser sanctions. [13] For violations of these Local Rules or of a specific court order, the Court may, in 14 imposing monetary sanctions, order that the monetary sanctions be paid to the Miscellaneous Fines, Penalties and Forfeitures, Not Otherwise Classified, fund of 15 the United States Treasury. [16] 17 DISCUSSION 18 In their MTD, Defendants argue that Plaintiff’s Complaint should be dismissed in its 19 entirety as Plaintiff failed to comply with this Court’s orders, and for failure to prosecute this 20 action. MTD at 4, 9. Specifically, Plaintiff failed to comply with this Court’s order to serve 21 responses to Defendants’ interrogatories, produce documents, and pay monetary sanctions by 22 October 20, 2023. Id. at 2. Further, Defendants request an order awarding Defendants the 23 reasonable expenses, including attorney’s fees, incurred in making this motion. Id. Defendants 24 argue that the Court has the authority to dismiss Plaintiff’s case under Fed. R. Civ. P. 37(b)(2) 25 and to grant Defendants reasonable expenses including attorney’s fees under Fed. R. Civ. P. 26 37(a)(5)(A). Id. at 4, 8. 27 // 1 A. Violation of this Court’s Orders 2 On September 27, 2023, the Court granted Defendants’ first MTC, and ordered Plaintiff 3 to: (1) produce responsive documents to Defendants’ RFPs, Nos. 1, 10-11, 13, 16-19, 22-24, 4 27-28, 31-34, 38-39 and Defendant JetSuite’s Interrogatories, Set One, without objection within 5 fourteen days of the order; (2) pay monetary sanctions in the amount of $1,425.00 to defense 6 counsel by October 13, 2023; and (3) file a declaration of payment by October 20, 2023. ECF 7 No. 35 at 11. Plaintiff failed to: (1) produce any discovery responses (see MTD at 4; Booth Decl. 8 at ¶¶ 26-27); (2) pay sanctions to Defendants (see MTD at 4; Booth Decl. at ¶ 26); and (3) file 9 a declaration of payment (see Docket). The Court specifically warned Plaintiff that additional 10 failures to comply with discovery obligations or court orders may result in additional monetary 11 sanctions, evidentiary sanctions, or dismissal of the case. ECF No. 35 at 11. 12 On October 30, 2023, the Court issued an OSC and scheduled a hearing for November 13 15, 2023, ordering Plaintiff’s counsel to appear in person and show cause why sanctions should 14 not be imposed for his failure to follow this Court’s order. See ECF No. 37. Again, in violation of 15 the Court Order, Plaintiff’s counsel failed to appear for the OSC hearing. See ECF No. 39. The 16 Court notes that Plaintiff’s counsel was aware of the OSC hearing as he called Judge Major’s 17 chambers to request a telephonic appearance at the OSC four (4) minutes prior to the start of 18 the hearing. 19 The facts clearly establish that Plaintiff failed to comply with the Court’s orders. The issue 20 then, is the appropriate sanction. For dismissal under Fed. R. Civ. P. 37(b) and 41(b), the 21 conduct of the disobedient party must be due to willfulness, bad faith, or fault of the party.” 22 Meeks, 2017 WL 908733 , at *10 (quoting United States ex rel. Wiltec Guam, Inc., 857 F.2d at 23 603. This factor does not require a finding of wrongful intent or any particular mental state. See 24 United States v. Lee, 2016 WL 11281164 , at *2 (S.D. Cal. Dec. 6, 2016). “Disobedient conduct 25 not shown to be outside the control of the litigant is sufficient to demonstrate willfulness, bad 26 faith, or fault.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994) (citing Henry v. Gill 27 Indus., 983 F.2d 943, 948 (9th Cir. 1993). “A single willful violation may suffice depending on 1 5097707, at *8 (E.D. Cal. Aug. 28, 2015) (citing Valley Engineers, Inc., 158 F.3d at 1056 , cert. 2 denied, 526 U.S. 1064 (1999)) and Ortiz–Rivera v. Municipal Government of Toa Alta, 214 F.R.D. 3 51, 57 (D.P.R.2003) (disobedience of court orders in and of itself constitutes extreme misconduct 4 and warrants dismissal)). The Ninth Circuit has held that dismissal is appropriate when the 5 “district court determines ‘that counsel or a party has acted willfully or in bad faith in failing to 6 comply with rules of discovery or with court orders enforcing the rules or in flagrant disregard 7 of those rules or orders.’” Meeks, 2017 WL 908733 , at *6 (citing Sigliano v. Mendoza, 642 F.2d 8 309, 310 (9th Cir. 1981) (quoting G–K Props. v. Redevelopment Agency, 577 F.2d 645 , 647 (9th 9 Cir. 1978)) (citing Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976)). 10 The Court finds that Plaintiff and his lawyer knowingly, intentionally, and willfully failed 11 to comply with court orders. In this Court’s September 27, 2023 Order granting Defendants’ 12 MTC, the Court ordered Plaintiff to provide discovery and warned Plaintiff that “additional failures 13 to comply with discovery obligations or court orders may result in additional monetary sanctions, 14 evidentiary sanctions, or dismissal of the case.” See ECF No. 35 at 9. Despite the warning and 15 with notice of the potential consequences for failure to comply, Plaintiff failed to participate in 16 discovery, pay sanctions, file any document, respond to the OSC, or appear in court for the OSC 17 as ordered. Plaintiff’s counsel’s telephone call to the undersigned Judge’s chambers four (4) 18 minutes prior to the OSC hearing establishes that he received this Court’s orders, knew what he 19 was required to do, and intentionally refused to comply with the Court’s orders. Accordingly, the 20 Court finds that Plaintiff’s failures to follow this Court’s specific orders to produce documents 21 and interrogatory responses, pay sanctions, file a declaration of payment, and appear for the 22 OSC hearing were done knowingly, willfully, and voluntarily and the decision was entirely within 23 the control of Plaintiff and his attorney. 24 B. Plaintiff’s Failure to Engage in Discovery 25 The evidence also clearly establishes that Plaintiff knowingly, intentionally, and willfully 26 failed to participate in the discovery process. While it is unclear whether Plaintiff served any 27 discovery on Defendants because Plaintiff did not file any pleadings in response to the Court’s 1 to Defendants’ discovery. Plaintiff did not produce responsive documents to Defendants’ RFPs 2 served on March 22, 2019, or respond to Defendant JetSuite’s interrogatories, set one, served 3 on March 6, 2023. MTD at 4; Booth Decl. ¶ 8-9. On March 15, 2023, Plaintiff’s counsel advised 4 defense counsel that he would provide responsive documents to the March 2019 request, which 5 established that Plaintiff was aware of his discovery obligations. See MTD at 3; Booth Decl. at ¶ 6 10. Counsel for Defendant made repeated attempts to obtain the discovery and to meet and 7 confer with Plaintiff’s counsel regarding the discovery disputes, but Plaintiff’s counsel has 8 continually refused to communicate with defense counsel after the March 15, 2023 9 communication, approximately nine (9) months ago. Booth Decl. at ¶¶ 3-18; ECF Nos. 36-5, 3610 6, 36-7, 36-9, 36-10, 36-11. Similarly, Plaintiff failed to designate experts or serve his expert 11 designations upon Defendants as required by Fed. R. Civ. P. 26(a)(2)(D)(i). Id. at 3; Booth Decl. 12 at ¶¶ 12, 14-15. 13 Plaintiff and Plaintiff’s counsel were given ample warning and opportunity to cure the 14 deficiencies regarding their failure to conduct and respond to fact and expert discovery, failure 15 to participate in meet and confer efforts, and failure to comply with this Court’s discovery orders. 16 In addition, Plaintiff’s counsel’s November 15, 2023 phone call to Judge Major’s chambers 17 confirmed that Plaintiff received the Court’s orders. Accordingly, the Court finds that Plaintiff 18 knowingly, intentionally, and willfully failed to engage in the discovery process and unreasonably 19 delayed the litigation. 20 C. Factors for Dismissal 21 As discussed below, all of the factors identified by the Ninth Circuit support the Court’s 22 decision to recommend dismissal of this case pursuant to Rules 37 and 41. See Valley Engineers, [23] 158 F.3d at 157 ; Ferdik, 963 F.2d at 1261; Hullinger, 2016 WL 7444620 , at *8. 24 1. Public Interest in Expeditious Resolution of Litigation and the Court’s Need 25 to Manage its Dockets 26 The first two factors represent the interest of judicial economy and weigh in favor of 27 dismissal. Here, Plaintiff filed this action over five years ago, on December 5, 2018. Although 1 twelve months since the stay was vacated, Plaintiff has not taken any action to move this case 2 toward resolution. Plaintiff has not designated experts, designated rebuttal experts, produced 3 expert disclosures, or responded to Defendants’ discovery requests, and has not communicated 4 with Defendants’ counsel since March 2023. Additionally, he has repeatedly failed to comply with 5 this Court’s orders. Accordingly, the Court finds that Plaintiff has unreasonably delayed in 6 prosecuting this action. See Ortega, 2022 WL 4386784 , at *2 (finding unreasonable delay when 7 the plaintiff did not participate in discovery nor respond to court orders over a five-month 8 period). Plaintiff’s failures have negatively impacted both the public’s interest in the expeditious 9 resolution of litigation and the Court’s need to manage its docket. Both of these factors weigh 10 in favor of dismissal. 11 2. The Risk of Prejudice to the Party Seeking Sanctions 12 The consideration of prejudice is an important factor in deciding a motion for a dismissal 13 and should receive more weight than the other factors. Meritage Homeowners’ Ass’n v. bank of 14 New York Mellon, 2017 WL 9471669 , at *4 (D. Or. Dec. 3, 2017) (citing Henry, 983 F.2d at 948 15 and Banga v. Experian Info. Solutions, 2009 WL 2407419 , *1 (N.D. Cal. Aug. 4, 2009)). “A 16 defendant suffers prejudice if the plaintiff’s action impairs the defendant’s ability to go to trial 17 or threatens to interfere with the rightful decision of the case.” In re Phenylpropanolamine (PPA) 18 Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (quoting Adriana Int’l Corp., [19] 913 F.2d at 1412 and citing Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987) and 20 In re Eisen, 31 F.3d 1447, 1453 (9th Cir. 1994)). Failing to produce documents as ordered is 21 considered sufficient prejudice. Id. (citing Adriana Int’l Corp, 913 F.2d at 1412 ). “Prejudice 22 normally consists of loss of evidence and memory, it may also consist of costs or burdens of 23 litigation, although it may not consist of the mere pendency of the lawsuit itself.” Id. (citing In 24 re Eisen, 31 F.3d at 1453 and Pagtaluan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)). 25 Here, Plaintiff has repeatedly and consistently refused to participate in the litigation 26 process, produce required discovery, and comply with judicial orders, which has severely 27 prejudiced Defendants. As a result of Plaintiff’s conduct, Defendants have had to spend time 1 without receiving any response or document production from Plaintiff, (2) attempting to meet 2 and confer with Plaintiff to informally resolve discovery disputes, (3) retaining and designating 3 experts, (4) preparing and filing a motion to compel, and (6) preparing and filing the instant 4 MTD. Despite Defendants’ efforts, Plaintiff has not produced discovery nor provided an excuse 5 or explanation for the inaction. Discovery has closed and Defendants need to consider and 6 possibly draft motions for summary judgment and prepare for trial. ECF No. 29 at 1-3. They are 7 unable to do so because Plaintiff has not produced any discovery or participated in the litigation. 8 As such, it is clear that Plaintiff’s conduct has severely impaired Defendants’ ability to go to trial 9 in this matter. See Mendia v. Garcia, 2018 WL 509977 , at *11 (N.D. Cal. Jan. 23, 2018) (finding 10 that plaintiff’s conduct was sufficiently prejudicial against defendants to warrant dismissal as 11 “Defendants have been forced to expend time and resources attempting to secure [plaintiff’s] 12 cooperation by filing motions (including the instant Motion) and attending in-person meet and 13 confer sessions, a motion hearing, and a deposition where Plaintiff did not to appear. Plaintiff’s 14 refusal to produce discovery has also impaired Defendants’ ability to adequately defend against 15 Plaintiff’s claims.”). Therefore, this factor also weighs in favor of dismissal. 16 3. Public Policy Favoring Disposition of Cases on Their Merits 17 The Court finds that the fourth factor also weighs in favor of dismissal. While public policy 18 favors disposition of cases on their merits, “a case that is stalled or unreasonably delayed by a 19 party’s failure to comply with deadlines and discovery obligations cannot move forward toward 20 resolution on the merits.” In re Phenylpropanolamine, 460 F.3d at 1228 . As such, this factor 21 “‘lends little support’ to a party whose responsibility it is to move a case toward disposition on 22 the merits but whose conduct impedes progress in that direction.” Id. (quoting In re the EXXON 23 VALDEZ, 102 F.3d 429, 433 (9th Cir. 1996) (noting that plaintiffs' total refusal to provide 24 discovery obstructed resolution of their claims on the merits); In re Eisen, 31 F.3d at 1454 25 (giving weight to the plaintiff's failure to specify why it is important that his actions be resolved 26 on their merits); Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (observing 27 that it is the responsibility of the moving party to move toward disposition on the merits). 1 It has been over nine months since Plaintiff’s counsel last contacted Defense counsel and 2 the discovery window has closed and yet Plaintiff has not made any effort to move this case 3 toward a resolution on the merits. Plaintiff’s apparent abandonment of this case overcomes the 4 public policy and favors dismissal. 5 4. Availability of Less Drastic Sanctions 6 “[B]ecause dismissal is so harsh a penalty, it should be imposed only in extreme 7 circumstances.” Meeks, 2017 WL 908733 , at *5. Before imposing a dismissal sanction, a court 8 must consider the “impact of the sanction and the adequacy of less drastic sanctions.” United 9 States ex rel. Wiltec Guam, Inc., 857 F.2d at 604 (quoting Malone, 833 F.2d at 131 and United 10 States v. Nat'l Med. Enter., 792 F.2d 906, 912 (9th Cir. 1986)). In Kahaluu Constr. Co., the Ninth 11 Circuit opined that “the district court is generally required to discuss alternative sanctions; but, 12 in exceptional cases, where it is clear that no other alternative would have been reasonable, we 13 may affirm a dismissal or default judgment despite the absence of such a discussion.” Id. (citing 14 Halaco Eng'g Co. v. Costle, 843 F.2d 376 , 381 (9th Cir. 1998)) (“consideration of less severe 15 penalties must be a reasonable explanation of possible and meaningful alternatives.”). If a court 16 fails to warn a claimant “explicitly or implicitly that their procedural lapses might result in a 17 judgment against them” then it places that court’s order of dismissal “in serious jeopardy.” Id. 18 at 605. In sum, a “three-part analysis determines whether a court properly considered the 19 adequacy of less drastic sanctions: (1) did the court explicitly discuss the feasibility of less drastic 20 sanctions and explain why alternative sanctions would be inappropriate, (2) did the court 21 implement alternative sanctions before ordering dismissal, and (3) did the court warn the party 22 of the possibility of dismissal before actually ordering dismissal?” U.S. Equal Emp't Opportunity 23 Com'n, 2009 WL 1287757 , at *4 (quoting Adriana Int'l. Corp., 913 F.2d at 1412-13 ). All three of 24 these factors support the Court’s dismissal recommendation. 25 The Court has considered and rejected the possibility of lesser sanctions. Monetary 26 sanctions were ineffective in forcing Plaintiff to comply with his discovery obligations and court 27 orders were ignored. As a result, monetary sanctions are not appropriate now. The Court also 1 that Plaintiff has refused to participate in the discovery and litigation process despite the Court’s 2 warning that such a failure could result in evidentiary or dismissal sanctions. In addition, 3 “evidentiary sanctions are most appropriate when a party fails to provide one specific type of 4 discovery.” See Chambers v. Janssen Pharmaceuticals, Inc., 2018 WL 3706695 , at *6 (S.D. Cal., 5 Aug. 3, 2018). Here, Plaintiff has not provided any discovery so there is no appropriate 6 evidentiary sanction or jury instruction. See Alexis v. Rogers, 2017 WL 1967328 , at *7 (S.D. 7 Cal., May 12, 2017) (“evidentiary sanctions would not be appropriate in this case as Plaintiff has 8 refused to engage in any discovery or litigation since at least January 2017. As such, any 9 evidentiary sanction would have to be broad, excluding a significant amount of evidence and 10 essentially preventing Plaintiff from presenting her case”).2 Finally, the Court repeatedly warned 11 Plaintiff that continued failures to participate in discovery and comply with Court orders could 12 result in dismissal of his case. See ECF No. 35 at 11; ECF No. 29 at 3. Despite repeated warnings, 13 court orders, and the imposition of monetary sanctions, Plaintiff refused to comply or litigate 14 this case. As a result, the Court finds that this factor also weighs in favor of a dismissal sanction. 15 5. Conclusion 16 For the reasons set forth above, the Court finds that Plaintiff knowingly, intentionally, and 17 willfully failed to comply with Court orders and the discovery process and, therefore, all of the 18 Hullinger factors weigh in favor of dismissal. See Hullinger, 2016 WL 7444620 , at *8 (quoting 19 Valley Engineers Inc., 158 F.3d at 1057 ). Further, the Court finds that Plaintiff has unreasonably 20 delayed in prosecuting this action which further warrants dismissal. See Ortega, 2022 WL 21 [23] 2 Citing Leon v. IDX Sys. Corp., 464 F.3d 951 , 960–61 (9th Cir. 2006) (affirming a dismissal 24 sanction where an evidentiary sanction would have been “futile” and a jury instruction that created a presumption in favor of defendants still “would leave [d]efendants equally helpless to 25 rebut any material that [p]laintiff might use to overcome the presumption.”) and AnheuserBusch, Inc. v. Natural Beverage Distrib., 69 F.3d 337, 352 (9th Cir. 1995) (affirming a dismissal [26] sanction because plaintiff's repeated violations of the court's orders and concealment of 27 documents demonstrated that “dismissal was the only real alternative,” where “the court anticipate[d] continued deceptive misconduct” and there was no “reasonable assurance that the 1 4386784, at *2. The Court, therefore, recommends that Defendants’ motion be granted and the 2 instant case dismissed with prejudice. 3 D. Defendants are Entitled to the Reasonable Expenses, Including Attorney’s 4 Fees, Incurred in Bringing the MTD 5 Defendants seek to recover the $1,140 they spent in attorney’s fees preparing and filing 6 the current MTD. Under Fed. R. Civ. P. 37, the movant’s reasonable expenses, including 7 attorney’s fees, must be awarded if the motion is granted and no exceptions apply: 8 If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, 9 require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable 10 expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if: [11] (i) the movant filed the motion before attempting in good faith to obtain the 12 disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially 13 justified; or (iii) other circumstances make an award of expenses unjust. [14] 15 Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). 16 Fee awards, are subject to two conditions. Superior Consulting Servs., Inc. v. Steeves17 Kiss, No. 17-CV-06059-EMC, 2018 WL 2183295 , at *1 (N.D. Cal. May 2018), aff'd by 786 18 Fed.Appx. 648 (2019) (citing Fed. R. Civ. P. 11(c)(2), (4)). The award must be limited to fees 19 directly resulting from the violation, and the fees awarded must be reasonable. Fed. R. Civ. P. 20 37(b)(2)(C) (“the court must order the disobedient party, the attorney advising that party, or 21 both to pay the reasonable expenses, including attorney's fees, caused by the failure”); 22 Goodyear Tire & Rubber Co. v. Haeger, 137 S.Ct. 1178, 1186, n. 5 (2017) (“Rule-based and 23 statutory sanction regimes similarly require courts to find such a causal connection before 24 shifting fees.”) (quoting Fed. R. Civ. P. 37(b)(2)(C)). A “court can shift only those attorney's fees 25 incurred because of the misconduct at issue ... [The] causal connection ... is appropriately 26 framed as a but-for test: The complaining party [ ] may recover only the portion of his fees that 27 he would not have paid but for the misconduct.” Goodyear Tire, 137 S.Ct. at 1186–87. 1 The Court grants Defendants’ request for reasonable expenses as Plaintiff did not oppose 2 the instant MTD and no exception to an award of reasonable expenses applies. First, but for 3 Plaintiff’s failure to comply with his discovery obligations and this Court’s orders, Defendants 4 would not have needed to bring the instant MTD. Next, Defendants tried to obtain Plaintiff’s 5 discovery responses and document production through the meet and confer process but Plaintiff 6 refused to participate or even respond to counsel’s communications. Third, there is no 7 substantial justification for Plaintiff’s failure to comply with court orders and to engage in the 8 litigation process. Lastly, the Court is not aware of any fact that would make an award of 9 expenses unjust. As the Court finds that an award of reasonable expenses is appropriate and 10 no exception applies, the issue is whether Defendant’s requested expenses are reasonable. 11 Defendants seek monetary sanctions of $1,140.00, which constitutes the costs incurred 12 in preparing and filing the instant MTD. Booth Decl. at ¶ 27. Counsel for Defendant, Ms. Booth, 13 states that she spent two (2) hours preparing the MTD and that her billing rate is $570 per hour 14 (2.0 x $570 = $1,140). Id. After reviewing Ms. Booth’s declaration and considering the lack of 15 objection, the Court finds that Ms. Booth’s hourly rate is reasonable and in line “with those 16 prevailing in the community for similar services by lawyers of reasonably comparable skill, 17 expertise, and reputation.” Blum v. Stenson, 465 U.S. 886 , 895 n.11 (1984). The Court also finds 18 that the requested two (2) hours for preparing the instant MTD is extremely reasonable. Finally, 19 the Court notes that Plaintiff failed to oppose the request for sanctions or to object to the hourly 20 rate requested and the time spend by counsel drafting the MTC. See Docket. 21 For the reasons set forth above, the Court finds that monetary sanctions are appropriate. 22 The Court further finds that Plaintiff did not provide any substantial justification for his failure to 23 comply with his discovery obligations or follow this Court’s orders and there are no “other 24 circumstances [that] make an award of expenses unjust.” See Fed. R. Civ. P. 37(d). Accordingly, 25 the Court GRANTS Defendants’ request for monetary sanctions in the amount of $1,140.00 and 26 orders Plaintiff and his attorney, James McDanel of the Law Offices of James McDanel, to pay 27 by January 5, 2024. This sanction is in addition to the monetary sanction ordered in 1 RECOMMENDATION 2 For the reasons set forth above, the Court finds that Plaintiff has knowingly, intentionally, 3 willfully failed to comply with Court orders, refused to respond to discovery or take any 4 || efforts to move this case toward resolution, and unreasonably delayed the resolution of this case 5 || to the detriment of Defendants. As a result, and after considering all the requisite factors, the 6 || Court RECOMMENDS that the District Judge issue an order (1) approving and adopting this 7 Report and Recommendation and (2) granting Defendants’ Motion to Dismiss. ? 8 IT IS HEREBY ORDERED that any written objections to this Report must be filed with 9 || the Court and served on all parties no later than January 3, 2024. The document should be 10 || captioned “Objections to Report and Recommendation.” 11 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court 12 || and served on all parties no later than January 10, 2024. The parties are advised that failure 13 || to file objections within the specified time may waive the right to raise those objections on 14 || appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 15 IT IS SO ORDERED. 16 ||Dated: 12/19/2023 lobe Mager 17 Hon. Barbara L. Major 18 United States Maqistrate Judde [24] oil | 26 Additionally, Civil Local Rule 7.1(f)(3)(c) states that “[i]f an opposing party fails to file the papers in the manner required by Civil Loval Rule 7.1.e.2, that failure may constitute a consent 27 || to the granting of a motion or other request for ruling by the Court.” Accordingly, Plaintiff’s lack of opposition to the instant motion is another factor in support of the Court’s recommendation 28 || for granting Defendants’ Motion to Dismiss.