Opinion
No. C00-1104 MMC (JL) (JCS)
April 5, 2001
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS AND FOR MONETARY SANCTIONS; VACATING APRIL 6, 2001 HEARING
Before the Court are a motion to dismiss the instant action pursuant to Rule 37(b)(2) of the Federal Rules of Civil Procedure and for monetary sanctions thereunder, filed by defendants City of Redwood City and Officer Gregory Farley ("City"), and a motion to dismiss and a motion for monetary sanctions, both pursuant to Rule 37(b)(2), filed by defendants Maria Valencia dba Flamingos Night Club and Keawe Charles Sham ("Valencia"). Plaintiff has filed no opposition or other response thereto.
Having reviewed the papers submitted in support of the motions, the Court deems the motions appropriate for decision on said submissions, VACATES the hearing scheduled for April 6, 2001, and rules as follows.
BACKGROUND
On March 29, 2000, plaintiff filed the instant action, alleging violations of his federal civil rights by all defendants and alleging negligence by Valencia. The City noticed plaintiff's deposition for August 3, 2000, but, as found by Magistrate Judge James Larson, plaintiff "failed to appear for his deposition and offered no reasonable explanation as to his failure to appear." (See October 30, 2000 Order to Compel at 2:2-3.) On October 30 2000, Magistrate Judge Larson granted the City's motion to compel, ordered plaintiff "to attend oral deposition in this matter on November 15th, 2000," and ordered plaintiff to pay sanctions to the City in the amount of $102.85 "for misuse of the discovery process." (See id. at 2:15-3:2.)
Plaintiff appeared for deposition on November 15, 2000, "but the deposition was not completed." (See January 12, 2001 Order Granting Defendants' Motion to Compel at 2:4-5.) Plaintiff refused to appear for his further deposition on November 16, the following day, and thereafter counsel for Valencia noticed his further deposition for November 20, 2001. (See id. at 5-7.) Plaintiff did not appear. (See id. at 7.) Defendants thereafter filed a second motion to compel plaintiff to attend his deposition. Plaintiff filed opposition to the second motion to compel, which opposition included the statement that plaintiff "will not appear for further deposition," and "[i]f the court does not like it, send me to jail." (See City's Mem. of P. A., Ex. E at 8:7-8.)
On January 10, 2001, Magistrate Judge Larson held a hearing to consider defendants' second motion to compel; plaintiff failed to appear at the hearing. (See January 12, 2001 Order at 1:20-21.) By order filed January 12, 2001, Magistrate Judge Larson granted defendants' motion to compel, ordered plaintiff to pay attorney fees and costs totaling $2,227.50, (see id. at 2:19-22), and "further ordered [plaintiff] to appear for the continuation of his deposition on January 17, 2001 at 9:30 a.m. . . ."(See id. at 3:1- 2.) Magistrate Judge Larson also recommended that this Court "consider more severe sanctions against Plaintiff, including dismissal of his case." (See id. at 2:23-24.) The order was served on plaintiff at his address of record. (See id.)
On January 17, 2001, plaintiff failed to appear at 9:30 a.m. to complete his deposition. (See Carnagey Decl., Ex. 1.) At approximately 10:00 a.m. counsel for the City and for Valencia concluded the proceeding after noting that neither counsel had received any communication from plaintiff with respect to plaintiff's non-appearance. (See id.)
DISCUSSION
It is undisputed that plaintiff failed to obey Magistrate Judge Larson's order of January 12, 2001. As a sanction, defendants seek both dismissal of the action and imposition of monetary sanctions.
A. Dismissal
Pursuant to Rule 37(b)(2), where a party fails to obey a discovery order, options available to the district court include, but are not limited to, establishing facts in favor of the moving party, prohibiting the disobedient party from supporting designated claims or introducing designated matter in evidence, striking parts of the pleadings, imposing monetary sanctions in the form of the reasonable expenses caused by the failure to obey, treating the failure to obey as a contempt, staying the proceedings until the order is obeyed, and dismissing the action. See Fed.R.Civ.P. 37(b)(2). Accordingly, the Court has the discretion to dismiss an action as a sanction for failure to obey a discovery order. See Fed.R.Civ.P. 37(b)(2)(C). "Where the drastic sanctions of dismissal or default are imposed, however, the range of discretion is narrowed and the losing party's non- compliance must be due to willfulness, fault, or bad faith." Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993) (citation omitted). Nevertheless, "disobedient conduct not shown to be outside the control of the litigant is all that is required to demonstrate willfulness, bad faith, or fault." Id. at 948 (internal quotation and citation omitted).
Other options set forth in Rule 37(b)(2) are inapplicable here, such as "rendering a judgment by default against the disobedient party." See Fed.R.Civ.P. 37(b)(2)(C).
Here, nothing before the Court indicates that plaintiff's disobedient conduct was caused by anything other than plaintiffs voluntary decision to disregard the January 12, 2001 order. In plaintiff's written opposition to the second motion to compel, plaintiff clearly indicated his intent not to appear for his deposition regardless of whether he was ordered to so appear, and thereafter failed to appear at the hearing on the motion. As noted above, plaintiff was properly served with the January 12, 2001 order. Despite such knowledge, plaintiff did not appear at his continued deposition, nor did plaintiff contact defense counsel to advise them of any reason why he would be unable to appear. Further, plaintiff has declined to file any opposition to the instant motions to dismiss, and thus offers no explanation for his actions taken in disregard of the January 12, 2001 order. Under such circumstances, the Court finds that plaintiff, acting with full knowledge of the January 12, 2001 order, and, acting in bad faith, willfully disobeyed that order.
Additionally, immediately following the hearing on the motion, Valencia gave plaintiff notice of plaintiff's duty to appear at the continued deposition. (See Carnagey Decl. at Ex. 1.)
"Before dismissing a case for noncompliance with court-ordered discovery under Rule 37, the district court must weigh the following five factors: (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 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Henry, 983 F.2d at 948. Where a party has violated a court order, the first two factors support imposition of the sanction of dismissal, while the fourth factor weighs against such dismissal. See Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir. 1990), cert. denied, 498 U.S. 1109 (1991). "Therefore, it is the third and fifth factors that are decisive." Id.
"A defendant suffers prejudice if the plaintiffs actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Id. (holding plaintiff's failure to comply with orders to appear at scheduled depositions and to produce documents "constitute[d] an interference with the rightful decision of the case," thus establishing prejudice).
Here, plaintiff alleges as the factual basis for his complaint against the City that Officer Farley threatened to have plaintiff arrested while plaintiff was attempting to arrest Sham. (See Compl. at ¶ 28.) During his uncompleted deposition, however, plaintiff testified that the basis for his claims is that Officer Farley did not arrest plaintiff. (See City's Mem. of P. A., Ex. F at 92.) Later, in his opposition to the second motion to compel, plaintiff stated that the basis for his claims was that there was an arrest, custody was "refused," and a City police officer committed a "second felony." (See City's Mem. of P. A., Ex. E at 6:20-22.) Consequently, the very basis for plaintiffs claims against the City is unclear. With respect to Valencia, the November 15, 2000 deposition session ended before the City had completed its examination, and before Valencia had an opportunity to ask any questions of plaintiff concerning plaintiffs' claims against Valencia. (See Carnagey Decl. at ¶ 5.)
At his deposition, plaintiff explained his theory by stating that because he was not taken into custody plaintiff was "not given due process." (See id. at 92:19-93:3.)
Because plaintiff has refused to complete his deposition, plaintiff has deprived the City of the opportunity to clarify the basis or bases of plaintiff's claims against the City, and has deprived Valencia of the ability to question plaintiff as to his claims against Valencia. As a result, each defendant's ability to prepare its defenses to plaintiff's claims has been seriously impaired, and such impairment is unlikely to be remedied given plaintiff's announced intention not to appear for his deposition. Accordingly, the Court finds that defendants have been prejudiced by and will continue to be prejudiced by plaintiff's willful misconduct.
The Court next turns to the question of whether sanctions less severe than dismissal are available. In considering this question, the Court considers (1) whether sanctions less than dismissal are feasible; (2) whether lesser sanctions have already been implemented, and (3) whether plaintiff had warning that dismissal was a possible consequence of his failure to comply with the Court's orders. See Malone v. United States Postal Service, 913 F.2d 128, 132 (9th Cir. 1987) (holding above factors "are of particular relevance" in considering alternatives to dismissal). However, "it is not always necessary for the court to impose less serious sanctions first, or to give any explicit warning." See Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1056-57 (9th Cir. 1998); see, e.g., Malone, 833 F.2d at 131-33 (affirming sanction of dismissal where district court had not explicitly warned plaintiff that dismissal would follow violation of court order but had implemented alternative measures prior to ordering dismissal).
The alternative of lesser sanctions in the form of monetary sanctions was twice imposed by Magistrate Judge Larson due to plaintiff's failure to appear at noticed depositions. Additionally, those sanctions themselves were of an escalating nature, the former being in a relatively small amount and the latter in a more substantial amount. Despite the imposition of such sanctions, plaintiff willfully failed to comply with the January 12, 2001 order. Moreover, plaintiff has not paid the monetary sanctions previously imposed. (See Carnagey Decl. at ¶ 6; City's Mem. of P. A. at 8:19-21). Consequently, there is no indication that further imposition of monetary sanctions will compel plaintiff to adhere to his discovery obligations and to obey court orders requiring him to comply with those obligations.
Certain of the statutory alternatives neither were nor are appropriate in the instant circumstances. Establishing facts in favor of defendants, prohibiting plaintiff from supporting some of his claims or from offering designated evidence, or striking from the complaint some of plaintiff's claims would not be effective. As noted, plaintiff's refusal to comply with court orders has significantly impaired defendants' ability to prepare a defense to the entirety of plaintiff's complaint, rather than to one or more identifiable claims therein.
With respect to the Court's contempt power, as noted above, plaintiff's position concerning his deposition was clearly and unambiguously stated in his opposition to the second motion to compel — he refused to appear, and challenged the Court to "send [him] to jail" for his pre-planned non-appearance. (See City's Mem. of P. A., Ex. E at 8:7-8.) Plaintiff's response indicates that use of the Court's contempt power is unlikely to result in compliance.
Similarly, staying the action until such time as plaintiff complies is unlikely to have a salutary effect, given plaintiff's expressed state of mind, and additionally would interfere with the Court's ability to effectively manage its docket. The trial in the instant action is set for September 24, 2001; staying the case for an indefinite period of time will likely affect the trial date and the other deadlines previously set by the Court, which in turn may well affect the trial date and associated deadlines set in other cases.
The Court next considers whether plaintiff was on notice that violation of the order of January 12, 2001 could result in dismissal of his claims. In his January 12, 2001 order, Magistrate Judge Larson recommended that this Court consider dismissal as an additional sanction for the conduct which gave rise to that order, (see January 12, 2001 Order at 2:23-24), noting that plaintiff had been advised previously "that he must cooperate in providing discovery, according to the rules of this court." (See id. at 2:11-13.) Moreover, as the Ninth Circuit has indicated, "everyone has notice from the text of Rule 37(b)(2) that dismissal is a possible sanction for failure to obey discovery orders," see Valley Engineers, 158 F.3d at 1056-57, and "[a] plaintiff can hardly be surprised by a harsh sanction in response to willful violation of a pretrial order." See Malone, 833 F.2d at 133. Accordingly, the Court finds that plaintiff was on sufficient notice that a violation of Magistrate Judge Larson's January 12, 2001 order could well result in the dismissal of his claims.
Under all of the circumstances as described above, the Court finds that dismissal is the appropriate sanction for plaintiff's violation of the order of January 12, 2001, and imposition of any sanction other than dismissal would not serve to enforce compliance with the Court's orders. See Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 352 (9th Cir. 1995) ("It is appropriate to reject lesser sanctions where the court anticipates continued deceptive misconduct").
B. Monetary Sanctions
"In lieu of any [other sanction] or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(b)(2).
Both the City and Valencia seek attorney's fees incurred to prepare the instant motions. Counsel for the City has declared that he spent six hours preparing the City's motion, and that his hourly rate is $150.00. (See Harrington Decl. at ¶ 2.) The Court finds that the time spent was reasonable, that the hourly rate is likewise reasonable and, accordingly, the City is awarded the sum of $900 pursuant to Rule 37(b)(2). Cf. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (holding that when considering request for attorney fees under 42 U.S.C. § 1988, "[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.")
Counsel for Valencia declares that he spent 15.2 hours preparing Valencia's motion to dismiss, and that his hourly rate is $185.00. (See Carnagey Decl. at ¶ 8.) The Court finds the time reasonably expended on the motion is 12 hours, that the hourly rate claimed is reasonable and, accordingly, Valencia is awarded the sum of $2,220.00 pursuant to Rule 37(b)(2). Valencia additionally seeks attorney's fees incurred to prepare for and attend plaintiff's January 17, 2001 noticed deposition. Counsel for Valencia declares that he spent 4.4 hours preparing for and attending the January 17, 2000 deposition. (See id.) The Court finds that the claimed time was reasonably expended. Accordingly, Valencia is awarded the further sum of $814.00 pursuant to Rule 37(b)(2). Finally, Valencia seeks to recover the $90 fee incurred to prepare the January 17, 2001 deposition transcript, (see id. at ¶ 8 and Ex. C), which transcript is offered to establish that plaintiff failed to appear. The Court finds such cost is properly awarded. Accordingly, Valencia is awarded its costs of preparation in the amount of $90 pursuant to Rule 37(b)(2).
CONCLUSION
For the reasons stated:
1. Defendant City's motion to dismiss and for sanctions is hereby GRANTED.
2. Defendant Valencia's motion to dismiss is hereby GRANTED.
3. Defendant Valencia's motion for sanctions is hereby GRANTED.
4. The action is hereby DISMISSED with prejudice.
5. Plaintiff shall pay defendant City sanctions in the amount of $900.
6. Plaintiff shall pay defendant Valencia sanctions in the amount of $3,124.00.
The Clerk of the Court shall close the file.
JUDGEMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
1. Defendant City's motion to dismiss and for sanctions is hereby GRANTED.
2. Defendant Valencia's motion to dismiss is hereby GRANTED.
3. Defendant Vanlencia's motion for sanctions is hereby GRANTED.
4. The action is hereby DISMISSED with prejudiced.
5. Plaintiff shall pay defendant City sanctions in the amount of $900.
6. Plaintiff shall pay defendant Valencia sanctions in the amount of $3,124.00.