Opinion
CV-21-2211-PHX-JAT (JFM)
10-23-2023
Gerald Vaughn Gwen, Plaintiff v. Unknown Parties, et al., Defendants.
REPORT AND RECOMMENDATION RE MOTION FOR SANCTIONS
James F. Metcalf United States Magistrate Judge.
Under consideration is Defendants' Motion for Sanctions filed August 29, 2023 (Doc. 83). Because the proposed disposition of this motion is an award of sanctions pursuant to Fed.R.Civ.P. 37(b)(2)(A), the Court proceeds by way of Report & Recommendation, as required by Local Rule of Civil Procedure 72.2(a)(1)
A. BACKGROUND
Plaintiff commenced this action on December 27, 2021 by filing his original Complaint (Doc. 1). That pleading was dismissed for failure to state a claim with leave to amend (Order 2/16/22, Doc. 6), as was Plaintiff's First Amended Complaint (Doc. 8) (Order 4/5/22, Doc. 9). Plaintiff filed his Second Amended Complaint on June 13, 2022 (Doc. 15). Answers were ordered from Defendants Caholico and Becky P to Plaintiff's claims regarding failure to provide medical care, dating from July and November 2020. The remaining claims and defendants were dismissed. (Order 7/27/22, Doc. 16.) Defendants filed their Answers (Docs. 26, 27) on November 14, 2022.
A Scheduling Order (Doc. 31) was issued November 18, 2022, which, inter alia, required the parties to serve by December 27, 2022 initial disclosure statements under Fed.R.Civ.P. 26(a), notwithstanding the otherwise applicable exemption. The deadline for, inter alia, initial disclosures were extended to March 28, 2023. (Order 12/21/22, Doc. 36 at 2.) Other deadlines in the schedule were subsequently amended. (Order 8/9/23, Doc. 77.)
On February 16, 2023, Defendants served Plaintiff with their discovery requests, including a First Request for Production of Documents and First Set of Non-Uniform Interrogatories. Plaintiff's response to each set of requests was to argue that he was exempt from discovery pursuant to “Rule 26(B)(iv),” presumably a reference to Rule 26(b)(1)(B)(iv) which exempts pro se prisoner cases from the Rule 26(a) initial disclosures requirement. (See Motion, Doc. 83, Exh. 1 (RFP response) and Exh. 2 (interrog. Response).)
On April 14, 2023 Defendants filed a Motion to Compel (Doc. 49) seeking an order compelling Plaintiff to serve his Rule 26(a) initial disclosure statement and to respond to Non-Uniform Interrogatories and Requests for Production of Documents. Plaintiff responded (Doc. 55) that, as a pro se prisoner he was exempt from initial disclosures, and that Defendants are improperly seeking his “defense” or evidence he may use at trial. He argued disclosing the information would deny him due process. The Court granted the Motion to Compel, and gave Plaintiff through May 22, 2023 to “serve on Defendants his Rule 26(a) initial disclosures and responses to the Non-Uniform Interrogatories and Requests for Production of Documents propounded on him by Defendants.” (Order 5/11/23, Doc. 58 (emphasis added)). Plaintiff filed an appeal (Doc. 64) of that Order arguing the exemption and unfairness in the proceedings. The Court denied that appeal, finding the order for initial disclosures was permissible, and no unfairness to Plaintiff. (Order 9/25/23, Doc. 89 at 5.)
Plaintiff served his Initial Disclosure Statement on May 22, 2023. (Motion, Doc, 83 at Exh. 3 (Init. Discl.).) Plaintiff disclosed the identity of himself and Defendants as parties with discoverable information, and listed three other individuals as anticipated witnesses. Otherwise he identified no documents and referenced Defendants as already possessing the relevant information, and that he had provided a medical records release. At the same time he served discovery responses to the Requests for Production (id. At Exh. 4) and Interrogatories (id. at Exh. 5). All of Plaintiff's responses were effectively objections, with the exception of RFP 1 (to which Plaintiff asserted his provision of a medical record release (Doc. 83-4 at 2) and Interrogatory No. 8 (to which Plaintiff raised an objection but asserted “there are at this time no computation for witnesses requiring damages at this times” (Doc. 83-5 at 4)).
In the meantime, Defendants sought an award of expenses, including attorneys fees, of $533.00 in bringing the motion to compel. (Doc. 59.) Plaintiff did not respond, and the Court granted the motion and ordered Plaintiff to pay Defendants the $533.00 in expenses. (Order 6/16/23, Doc. 70.)
On July 14, 2023, Defendants filed a Motion to Enforce Order Granting Motion to Compel (Doc. 72). The Court construed the filing as a (first) Motion for Sanctions, and directed a response. Plaintiff responded (Doc. 74), raising various procedural arguments, and asserting that he had served responses to the discovery ordered (which primarily consisted of objections), and argued that he had the right to mount objections to the requests in his responses. Based on the failure to confer argued by Plaintiff, the Court denied the motion without prejudice, but clarified that Plaintiff had waived any objections to the discovery requests by failure to argue them in response to the Motion to Compel. (Order 8/9/23, Doc. 77.) Plaintiff appealed (Doc. 79) that order to District Judge Teilborg. The appeal was denied, with the Court again advising Plaintiff “Plaintiff waived his new arguments by not raising them in his response to the original Motion to Compel.” (Order 10/13/23, Doc. 90 at 3.)
B. CURRENT MOTION
On September 1, 2023 Defendants filed the instant Motion for Sanctions (Doc. 83), avowing that: defense counsel arranged for and conducted a conference call with Plaintiff on August 18, 2023; Plaintiff complained he did not have sufficient notice to gather documents to discuss the discovery disputes, but indicated he would not be supplementing his earlier responses, and that he would not withdraw his objections. (Id. At Exh. 6.) Defendants argue Plaintiff has proceeded in bad faith and willfully refused to comply with the Court's orders even after an award of expenses, and instruction from the Court that his objections were waived. Defendants seek sanctions “up to and including the dismissal of Plaintiff's Complaint.”
Plaintiff has responded (Doc. 87): (1) conclusorily arguing he has fully complied as shown by the exhibits to Defendants' motion; (2) asserting a denial of fairness based on the rejection of his discovery motions; (3) denying that Defendants' attempts to confer prior to the instant motion were not in good faith because of the lack of prior notice; (4) asserting no discussions were had on the discovery requests, and that counsel's affidavit of such is perjurious; and (4) Defendants have failed to comply with their discovery obligations.
Plaintiff also argues Defendants' motion fails to comply with Local Rule of Civil Procedure 37.1. The Court's Order on the prior motion for sanctions explained to Plaintiff that Rule 37.1 has no application to motions for sanctions. (Order 8/9/23, Doc. 77 at 2.) Plaintiff offers nothing to show that conclusion is erroneous. Plaintiff also argues Defendants violated Rule 11. This argument was rejected by the District Judge. (Order 9/25/23, Doc. 89 at 6-7.)
Defendants have replied (Doc. 88), arguing Plaintiff fails to show he has complied with the Court's order compelling discovery, but instead simply impugns counsel's integrity and candor and the fairness of the Court. Defendants argue that they simply requested from prison officials a conference call with Plaintiff and were dependent upon prison officials to provide Plaintiff notice.
C. APPLICATION OF LAW
Conference Requirement Met - The undersigned finds that Defendants have adequately conferred with Plaintiff in good faith prior to bringing the instant motion.
Plaintiff complains he didn't have time to prepare for the conference. But he proffers no indication what preparation was necessary. This conference was not a negotiation about whether or what responses were required. That issue had been resolved by the Court's orders, and was framed by Plaintiff's almost complete lack of any substantive responses. The only issue to be resolved was whether and when Plaintiff would comply the Court's order.
The Court finds uncredible Plaintiff's unverified denials of counsel's statements made under penalty of perjury regarding the occurrence and contents of counsel's telephonic conference with Plaintiff. The undersigned finds that Plaintiff expressed to defense counsel that he did not intend to comply with the Court's orders by providing substantive responses (rather than objections) to the discovery requests. At that point, further discussions were pointless, and Defendants had made a good faith effort.
Plaintiff Has Failed to Comply - Federal Rule of Civil Procedure 37(b)(2) authorizes the Court to issue “further just orders” if a party “fails to obey an order to provide or permit discovery, including an order under Rule.. .37(a).” Here, Plaintiff was ordered under Rule 37(a) to “serve on Defendants his Rule 26(a) initial disclosures and responses to the Non-Uniform Interrogatories and Requests for Production of Documents propounded on him by Defendants.” (Order 5/11/23, Doc. 58 (emphasis added)). Instead of serving responses to the discovery requests, Plaintiff has largely served only objections.
To the extent Plaintiff may have been under the impression that objections qualified as responding, the Court's Order on Defendants' first Motion for Sanctions dispelled any misunderstanding. The Court instructed:
Plaintiff argues was entitled to mount new objections to the discovery requests. Plaintiff is incorrect. Plaintiff was already ordered to respond to these discovery requests. Plaintiff's time to assert the objections he now attempts to raise was in his original responses to the discovery requests.
To avoid discovery, a party must assert their specific objections in response to the request, and argue them in response to a motion to compel. “It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). Moreover, as for Defendants' interrogatories, Rule 33(b)(4) provides: “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Plaintiff posits no good cause for failing to properly raise his objection when originally responding to the interrogatories.
Moreover, Plaintiff posits no reason why he did not raise these new objections in his response to the original Motion to Compel. In
essence, Plaintiff now seeks a second bite at the apple, effectively asking the Court to reconsider its order on the Motion to Compel based on entirely new arguments. But he posits no reason why he did not raise these objections earlier.(Order 8/9/23, Doc. 77 at 1-2.) Despite this instruction, Plaintiff still, over two months later, has not served responses to Defendants' discovery requests.
Further, the Court's Order (Doc. 90) on Plaintiff's appeal of that Order was issued October 13, 2023, again clarifying for Plaintiff that he could not rely on objections. Nonetheless, as of this date, Plaintiff has not served responses to Defendants' discovery.
Appropriate Sanctions - Rule 37(b)(2)(A) indicates some of the possible sanctions available. The court's discretion in fashioning a sanction is not absolute. “Rule 37(b)(2) contains two standards-one general and one specific-that limit a district court's discretion. First, any sanction must be ‘just'; second, the sanction must be specifically related to the particular ‘claim' which was at issue in the order to provide discovery.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707(1982). In determining the justness of a sanction, the more severe the sanction the higher the standard.
Some sanctions are deemed not “severe,” e.g. “(iv) staying further proceedings until the order is obeyed,” “(vii) treating as contempt of court the failure to obey,” or ordering “the disobedient party...to pay the reasonable expenses, including attorney's fees, caused by the failure.” See Fed.R.Civ.P. 37(b)(2)(A)(iv) and (vii), and 37(b)(2)(C). Here, however, these sanctions are unlikely to be effective.
Staying would be ineffective because Plaintiff has shown that he is content to delay these proceedings. He has spent some six months fighting to avoid providing any effective responses to Defendants' discovery requests, and has mounted some six appeals to the District Judge, each of which have been found to be unsupported. (See Order 10/13/23, Doc. 90 (addressing appeal at 77); Order 9/25/23, Doc. 89 (addressing appeals at 48, 61, 64, 71, 86).)
Monetary sanctions would likely be ineffective for two reasons. First, Plaintiff is appearing in forma pauperis, presumably making it impossible for him to comply with such sanctions. Second, even in the face of the instant sanctions motion, Plaintiff has refused to provide discovery, even after an award of attorneys fees to Defendants on the Motion to Compel.
Similarly, a finding of contempt will be ineffective. Monetary penalties will be ineffective, as will sanctions such as incarceration given Plaintiff's prisoner status.
Some sanctions may or may not be severe, depending on the effect, including orders “(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,” “(ii) prohibiting the disobedient party...from introducing designate matters in evidence,” or (iii) striking pleadings in whole or in part” must evaluated based on their effect to ascertain whether they are “terminating.” See Fed.R.Civ.P. 37(b)(2)(A)(i), (ii), (iii). Here, given the pervasive nature of Plaintiff's failure to provide discovery, any such orders would effectively be dispositive of the entire case.
“Severe” sanctions include at least “[d]ismissal and default judgment.[and] orders taking the [propounding party's] allegations as established and awarding judgment to the [propounding party] on that basis.” U.S. for Use & Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 603 (9th Cir. 1988). See Fed.R.Civ.P. 37(b)(2)(v), (vi), and (i). Such sanctions amount to a disposition of a claim or action. See Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (characterizing such sanctions as “terminating”).
“Severe” sanctions can only be imposed in “extreme circumstances” and where the violations are “due to willfulness, bad faith, or fault of the party.” U.S. for Use & Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 603 (9th Cir. 1988). Here, the circumstances are extreme. Plaintiff has not simply failed in responding to discrete portions of discovery, but has effectively failed to serve any substantive responses to interrogatories or requests for production, insisting instead on relying on his impermissible objections. And he has persisted in doing so even after the undersigned and the District Judge addressed the impropriety of such objections. His actions can only be viewed as willful and in bad faith.
Even when authorized, courts are directed to impose severe sanctions only if it is just in light of five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Rio Properties, Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The fifth factor calls for the court to evaluate “whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions.” Connecticut Gen. Life, 482 F.3d at 1096. “The first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against a ... dismissal sanction. Thus the key factors are prejudice and the availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir.1990).
Regarding the first (delay) and second (docket management) factors relevant to severe sanctions, Petitioner's recalcitrance has resulted in numerous unnecessary orders and delays in this case, slowing the resolution of the case and complicating the management of the case, with the Court being required to vacate deadlines such as dispositive motions, settlement discussions, and final pretrial motions, to allow Defendants a chance to obtain discovery. (See Order 8/9/23, Doc. 77.)
Regarding the third factor (prejudice), Defendants have effectively been denied any information from Plaintiff save a release of his medical records and the identification of three non-party witnesses. Requiring Defendants to defend this suit in such circumstance risks substantial prejudice to Defendants.
As always, the fourth factor (merits) counsels against severe sanctions.
Regarding the fifth factor (less drastic solutions), Plaintiff has not provided discovery despite being informed, not only in the original orders by the undersigned (Docs. 58 and 77), but in the orders on his appeals of those orders (Docs. 89 and 90) of the invalidity of his positions on discovery. Although the Court has not directly warned Plaintiff of the potential for dismissal, he has been made aware in Defendants' first motion for sanctions that the sanctions in Rule 37(b)(2)(a) would be available for Plaintiff's refusal to comply with the Court's Orders. (Motion, Doc. 72 at 4.) Moreover, the request for such a sanction is explicit in the instant Motion for Sanctions. (Motion, Doc. 83 at 7.) Despite this notice, Plaintiff's conduct has not changed.
In addition to the ineffectiveness of the orders to date, awards of expenses have proved ineffective in obtaining Plaintiff's compliance. Moreover, there is nothing in the record to suggest that further orders or some other form of lesser sanctions will elicit Plaintiff's compliance.
The only lesser sanction that appears available and likely to be effective is a dismissal without prejudice. The undersigned makes no determination whether new defenses might arise after a dismissal, e.g. a statute of limitations, that would preclude Plaintiff from obtaining relief in a new action. But a dismissal without prejudice leaves an opportunity for Plaintiff to attempt to refile and, if necessary, attempt to overcome such defenses.
Accordingly, the appropriate remedy appears to be a dismissal without prejudice.
Returning full circle, and based on the foregoing, the undersigned finds that a dismissal without prejudice is a just sanction. Further, the undersigned finds such sanction to be commensurate with the breadth of Plaintiff's noncompliance.
Rulings on Plaintiff's Motions - Plaintiff protests that any sanctions would be inappropriate because the Court has not handled the case even handedly. At most, however, Plaintiff points to the denial of his discovery motions versus the grants of Defendants' motions. But a disparate result is unfair only if arising from comparable circumstances. Plaintiff points to no specific rulings which he contends show bias or unfairness. In addressing Plaintiff's objections to the undersigned's orders, the Court has concluded: “there is nothing in the Magistrate Judge's conduct that would suggest any bias or unfairness to Plaintiff.” (Order 9/25/23, Doc. 89 at 5.)
Defendant's Discovery Failings - Plaintiff asserts that sanctions would be unjust because Defendants have “failed to cooperate with discovery request made by Plaintiff.” (Response, Doc. 87 at 6.) Apart from being a conclusory argument, the undersigned observes that Plaintiff has failed to timely file a proper motion to compel. Accordingly, Plaintiff has waived any such non-compliance that might have occurred. Moreover, the failure of one party to provide discovery does not authorize another to refuse discovery.
IT IS THEREFORE RECOMMENDED:
(A) Defendants' Motion for Sanctions (Doc. 83) be GRANTED.
(B) As a sanction for Plaintiff's failure to comply with the Court's order compelling discovery, Plaintiff's complaint and this action be DISMISSED WITHOUT PREJUDICE.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).