Boynton v. Federal Correction Institution Dublin

MOTION to DISMISS for LACK of PROSECUTION and Cooperation in Discovery

E.D. Cal.October 4, 2016

1 United States’ Notice of Motion and Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA PEGGY BOYNTON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. AND RELATED COUNTERCLAIM. CASE NO. 2:11-CV-00623-MCE-EFB UNITED STATES’ NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND COOPERATE IN DISCOVERY Date: November 3, 2016 Time: 2:00 p.m. Courtroom: 7 (14th Floor) PLEASE TAKE NOTICE THAT, on November 3, 2016, at 2:00 p.m., in the Courtroom of the Honorable Morrison C. England, Jr., United States District Judge for the Eastern District of California, Sacramento Division, Robert T. Matsui United States Courthouse, 501 I Street, Courtroom 7 (14th Floor), Sacramento, California, the United States will and hereby moves for an order dismissing Plaintiff’s action under Fed. R. Civ. P. 41(b) and Fed. R. Civ. P. 37 for failure to prosecute, cooperate in discovery, and comply with the Court’s orders. This motion is based on the accompanying memorandum of points and authorities, along with any declarations and exhibits filed in support thereof, the Court’s files and records in this matter, and any oral argument that may be presented to the Court. //// PHILLIP A. TALBERT Acting United States Attorney BOBBIE J. MONTOYA Assistant United States Attorneys 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2775 Facsimile: (916) 554-2900 Attorneys for Defendant/Counter-Claimant United States of America Case 2:11-cv-00623-MCE-EFB Document 107 Filed 10/04/16 Page 1 of 2 2 United States’ Notice of Motion and Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, DATED: October 4, 2016 PHILLIP A. TALBERT Acting United States Attorney /s/ Bobbie J. Montoya By: ___________________________ BOBBIE J. MONTOYA Assistant U.S. Attorney Attorneys for Defendant/Counter-Claimant United States of America Case 2:11-cv-00623-MCE-EFB Document 107 Filed 10/04/16 Page 2 of 2 1 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA PEGGY BOYNTON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. AND RELATED COUNTERCLAIM. CASE NO. 2:11-CV-00623-MCE-EFB MEMORANDUM IN SUPPORT OF UNITED STATES’ MOTION TO DISMISS FOR FAILURE TO PROSECUTE AND COOPERATE IN DISCOVERY Date: November 3, 2016 Time: 2:00 p.m. Courtroom: 7 (14th Floor) I. INTRODUCTION The United States respectfully asks the Court to dismiss Plaintiff Peggy Boynton’s action pursuant to Fed. R. Civ. P. 37 and 41(b) for failure to prosecute, cooperate in discovery, and comply with the Court’s orders. The United States, however, intends to pursue its counterclaim against Plaintiff. II. BACKGROUND On March 7, 2011, Plaintiff filed the above-captioned action under the Federal Tort Claims Act (“FTCA”), alleging a negligence claim against the United States. ECF No. 1. Plaintiff alleges damage to her mobile home resulted from the negligence of the Bureau of Prisons (“BOP”) at the Federal Correctional Institution, Dublin, California (“FCI Dublin”). ECF No. 14 (First Amended PHILLIP A. TALBERT Acting United States Attorney BOBBIE J. MONTOYA Assistant United States Attorneys 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2775 Facsimile: (916) 554-2900 Attorneys for Defendant/Counter-Claimant United States of America Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 1 of 12 2 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint). Plaintiff, a retired BOP employee at FCI Dublin, had applied and was approved for staff housing at FCI Dublin’s mobile home park. ECF No. 16 at 6:23-26. Plaintiff’s privilege to occupy the mobile home site terminated upon her retirement from the BOP. Id. at 6:27-7:1. On September 16, 2010, Plaintiff was issued a formal notice of termination of occupancy, terminating her privilege to maintain her mobile home at FCI Dublin staff housing due to her retirement from BOP, and she was given to December 15, 2010, to either sell her mobile home in accordance with BOP and FCI Dublin policies, or to remove it from FCI Dublin grounds. Id. at 7:2-6. To date, Plaintiff still unlawfully withholds possession of FCI Dublin Mobile Home Space No. 1 by failing to remove or sell her mobile home in accordance with BOP policy. Id. at 7:18-19. On November 30, 2011, the United States filed an Answer to the First Amended Complaint for Damages and Counterclaim in Ejectment to Recover Possession of Real Property and Damages for Wrongful Detention. ECF No. 16. In its counterclaim, the United States seeks, inter alia, an order for restitution of the premises to the United States, damages for Plaintiff’s unlawful possession at the rate of at least $222.50 bi-weekly from and after July 5, 2011, until delivery of possession thereof, damages for reasonable costs of repair or restoration of the property to its original condition, and damages for costs of recovering possession of the premises, including, but not limited to, all of the United States’ costs to have the mobile home transported off of FCI Dublin grounds and any costs and expense associated therewith. Id. at 8:2-12. On February 7, 2012, the Clerk entered default against Plaintiff for her failure to respond to the United States’ counterclaim. ECF No. 19. On December 13, 2012, Plaintiff’s attorney of record at the time, Ronald W. Carter, filed a motion to be relieved as counsel based on “a breakdown in the attorney-client relationship, a breakdown in communication, and on the grounds that plaintiff has breached counsel’s employment contract regarding the payment of fees and has voluntarily terminated the contract.” ECF No. 25 at 2:1-8. Mr. Carter’s motion was granted on January 18, 2013, and Plaintiff proceeded in propria persona. ECF No. 29. //// Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 2 of 12 3 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Just prior to Mr. Carter being relieved as Plaintiff’s counsel, the parties had consented to the Voluntary Dispute Resolution Program (“VDRP”). ECF No. 22. After Mr. Carter was relieved as Plaintiff’s counsel, counsel for the United States’ attempts to communicate with Plaintiff to move forward with the VDRP process and schedule a mediation were unsuccessful, so the United States requested a status conference be ordered to determine whether VDRP was still viable or to reset pretrial schedule dates so that the case could proceed forward. ECF No. 32. On March 5, 2013, the Court issued an order directing the parties to meet and confer by March 20, 2013, to discuss whether they still consented to VDRP and file a joint status report. ECF No. 33. On March 20, 2013, the parties filed a joint status report in which Plaintiff indicated she wanted to go forward with VDRP but first wanted to hire new counsel. ECF No. 34. By order issued March 25, 2013, the Court, inter alia, gave Plaintiff until May 20, 2013, to obtain counsel or proceed with VDRP and this case pro se. ECF No. 35. On May 17, 2013, Plaintiff filed a request for appointment of counsel, ECF No. 39, and on May 20, 2013, she requested a two-month extension of time to obtain counsel, ECF No. 40. The Court denied Plaintiff’s request for appointment of counsel but granted her request for an extension of time, giving her until July 22, 2013, to obtain counsel or prepare to proceed with VDRP pro se. ECF No. 42. A VDRP session was held on August 29, 2013, with Plaintiff in pro se, and no settlement was reached. ECF No. 46. On October 17, 2013, the Court issued a scheduling order. ECF No. 47. On December 6, 2013, attorney Mark T. Gallagher filed a substitution of attorney for Plaintiff, which was approved by the court on December 18, 2013. See ECF Nos. 48 & 52, respectively. In light of Plaintiff obtaining counsel, an amended scheduling order was issued on January 3, 2014. ECF No. 55. In July 2014, the United States, in good faith, negotiated a settlement agreement. See Notice of Settlement Agreement filed July 30, 2014, ECF No. 56. The Court granted the parties two extensions of time to file the signed settlement documents, ultimately to December 29, 2014. See, e.g., ECF Nos. 60, 62. On December 30, 2014, the United States filed a notice indicating that Plaintiff’s counsel had not responded to attempts to finalize the settlement documents, ECF No. 63, Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 3 of 12 4 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 after which the Court issued an order “to show cause in writing as to why this case should not be dismissed with prejudice for noncompliance with the local rules and/or court orders, failure to prosecute pursuant to this Court’s inherent authority to control its docket, and/or Federal Rule of Civil Procedure 41(b).” Minute Order, ECF No. 65. Notwithstanding that she was represented by counsel, by letter filed January 6, 2015, Plaintiff wrote the court concerning her dispute with her attorney, Mark Gallagher, and accused him of destroying her file. ECF No. 66. On January 15, 2015, Mr. Gallagher, responded to the OSC, indicating, inter alia, that he had no direct communication from his client for more than six months.1 ECF No. 67 at ¶ 1. Mr. Gallagher also indicated that after Plaintiff had authorized him to settle the case but before the settlement could be executed, he was notified by Plaintiff’s husband, John Boynton, that Plaintiff had travelled to North Carolina to visit a sick relative and was herself hospitalized. Id. at ¶ 2. Mr. Gallagher further indicated that he had no further telephone contact with Plaintiff or her husband notwithstanding numerous letters he had sent to Plaintiff’s California address in hopes they would be forwarded to her in North Carolina. Id. at ¶ 3. Mr. Gallagher did, however, receive a letter from Plaintiff on December 1, 2014, asking to come to his office to review her file; he responded on December 2, 2014, informing Plaintiff he would make himself available to meet with her at any time. Id. at ¶ 4. Mr. Gallagher received no response to his letter. Id. Mr. Gallagher indicated that he could no longer represent Plaintiff in this matter and asked that she be allowed to retain new counsel. Id. at ¶¶ 6-7. On March 5, 2015, the Court ordered Plaintiff’s counsel to file either a motion to withdraw or a statement indicating that he will continue to provide representation. ECF No. 70. On March 24, 2015, the United States filed a motion for default judgment on its counterclaim, which was denied on March 30, 2016. ECF Nos. 73 & 101, respectively. On April 6, 2015, Mr. Gallagher filed a motion to withdraw as counsel, which was denied on April 29, 2015. ECF Nos. 76 & 80, respectively. The Court scheduled a status conference for March 17, 2016. ECF No. 95. At the status conference, the parties stipulated to a settlement 1 On January 15, 2015, the United States also responded to the OSC. ECF No. 68. It indicated that it had no objection to dismissal of Plaintiff’s claim against the United States, however, it sought judgment be entered in its favor on its counterclaim against Plaintiff, against whom default had been entered on February 7, 2012. Id. Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 4 of 12 5 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conference before Judge Morrison C. England, Jr., scheduled for April 4, 2016. See ECF No. 99. The settlement conference was held but no settlement was reached at that time. See ECF No. 102. On May 19, 2016, the Court issued a new scheduling order. ECF No. 103. The scheduling order provides for discovery to close on October 3, 2016. Id. at 2:1-8. On August 2, 2016, counsel for the United States served a Notice of Deposition and Request for Production of Documents on counsel for Plaintiff, noticing the depositions of Plaintiff Peggy Boynton and her husband John Boynton for August 19, 2016, at 10:00 a.m. and 2:00 p.m., respectively, at the U.S. Attorney’s Office. Declaration of Bobbie J. Montoya at ¶ 4. On or about August 12, 2016, Plaintiff’s attorney contacted the Government’s attorney and advised he was having difficulty getting in contact with his client to notify her and her husband about the depositions, that she was not responding to his communications. Id. at ¶ 5. The parties agreed to continue the depositions to August 26, 2016, to allow Plaintiff’s attorney additional time to communicate with his client. Id. On August 12, 2016, the United States served an Amended Notice of Deposition and Request for Production of Documents on counsel for Plaintiff. Id. at ¶ 6. On August 23, 2016, Plaintiff’s attorney again contacted the Government’s attorney and again advised he had lost communication with his client, that he had called her numerous times and sent her letters by mail, but she had not responded back to him. Id. at ¶ 7. Plaintiff’s attorney’s attempted communications with his client included more than five telephone calls and three letters. See Joint Statement Re Discovery Disagreement, ECF No. 104-2, at 5:18-19. On August 24, 2016, the Government’s attorney sent a letter to Plaintiff’s attorney by email and regular U.S. mail, notifying him that the depositions would go forward on August 26, 2016, as scheduled. Montoya Dec. at ¶ 8. On August 26, 2016, neither Plaintiff nor her husband appeared for the depositions. Id. at ¶ 9. On August 15, 2016, counsel for the United States served the United States’ First Set of Requests for Admission on counsel for Plaintiff. Id. at ¶ 10. Plaintiff has not responded to the United States’ First Set of Requests for Admission, even though more than 30 days has elapsed since the discovery request was served, as required by Fed. R. Civ. P. 36(a)(3). Id. On September 13, 2016, the United States filed a motion to compel discovery. ECF No. 104. The Government’s motion was heard by the Magistrate Judge on September 21, 2016. See Minutes Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 5 of 12 6 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 for Motion Hearing, ECF No. 105. Plaintiff’s attorney appeared at the hearing but Plaintiff did not. Montoya Dec. at ¶ 11. The Magistrate Judge granted the United States’ motion and ordered Plaintiff to “appear for her deposition on October 3, 2016 at 10:00 a.m. at the United States Attorney’s Office, 501 I Street, Sacramento, CA 95814, and produce all documents relied upon to prepare for the deposition.” Order, ECF No. 106. On September 26 and 29, 2016, Plaintiff’s attorney emailed the Government’s attorney that he still had no contact with Plaintiff. Montoya Dec. at ¶ 12. On Friday, September 30, 2016, at 9:01 a.m., Plaintiff’s attorney left the Government’s attorney a cryptic voicemail message indicating that he had just received a call from his client, that she was going to Kaiser Hospital in Pleasanton, and that she is too sick to attend her deposition on Monday, October 3. Id. at ¶ 13. He further indicated that it was the first contact he had had with his client since the April 4, 2016 settlement conference. Id. He said that he was unavailable until after 12:00 p.m., that he could be reached at a specific phone number after then. Id. The Government’s attorney called Plaintiff’s attorney back around 12:30 p.m., at the number he had given, and only got his voicemail; she left a message that the deposition would be cancelled based on his earlier call. Id. Plaintiff’s attorney did not call the Government’s attorney back to further discuss the matter. Id. Furthermore, Plaintiff did not provide any supporting documentation or corroboration – no doctor’s note or affidavit, and no details whatsoever regarding the nature of Plaintiff’s illness, its duration, treatment, the kind of doctor she needed, or whether she required Emergency Room services – that would justify Plaintiff’s violating the Court’s order that she appear on October 3 and be deposed. Id. III. RELEVANT RULES A district court’s authority to dismiss a litigant’s action with prejudice pursuant to Fed. R. Civ. P. 37 and 41 for failure to prosecute and/or cooperate in discovery is well established. See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”); Fed. R. Civ. P. 37(b)(2)(A)(v) (stating that the Court may dismiss an action if a party fails to obey a discovery order); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (“The authority of a federal trial court to dismiss a plaintiff’s action because of his failure to prosecute cannot seriously be doubted.”); Computer Task Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 6 of 12 7 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (“Rule 37 permits the district court, in its discretion, to enter a default judgment against a party who fails to comply with an order compelling discovery.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (stating that district courts have inherent power to control their dockets and “‘[i]n the exercise of that power they may impose sanctions including, where appropriate, . . . dismissal of a case.’”) (quoting Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986)). “The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link, 370 U.S. at 629-30. IV. DISCUSSION Plaintiff did not appear for her deposition noticed for April 26, 2016, or the October 3, 2016 deposition ordered by the Court; she also failed to timely respond to the United States’ First Set of Requests for Admission. Montoya Dec. at ¶¶ 9, 10. As discussed above, Plaintiff has a history of failing to cooperate in this action – not only with the Court but with her own attorneys. As a result of Plaintiff’s lack of cooperation, failure to respond, and violation of the Court’s order, the United States has been unable to depose Plaintiff. Accordingly, the United States respectfully asks the Court to dismiss Plaintiff’s action against the United States pursuant to Fed. R. Civ. P. 41(b) and Fed. R. Civ. P. 37for failure to prosecute, cooperate in discovery, and comply with the Court’s orders. Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” A district court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the rules of Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 7 of 12 8 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (“Failure to follow a district court’s local rules is a proper ground for dismissal”); Ferdik, 963 F.2d at 1260 (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court”); Thompson, 782 F.2d at 831 (stating that district courts have inherent power to control their dockets and may impose sanctions including dismissal or default). In determining whether to dismiss a case for failure to prosecute, failure to comply with a court order, or failure to comply with a district court’s local rules, the court must consider: (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 alternatives. Ferdik, 963 F.2d at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 F.3d at 53. According to the Ninth Circuit Court of Appeals, “[t]hese factors are not a series of conditions precedent before the judge can do anything, but a way for a district judge to think about what to do.” In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). Public interest in expeditious resolution of litigation: Here, the first Ferdik factor strongly supports dismissal. “The public’s interest in expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d at 642 (quoting Yourish v. Calif. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). This action has had several delays, all of which were due to Plaintiff. After Plaintiff’s first attorney was relieved as counsel on January 18, 2013, the court practically suspended the action to give Plaintiff more than sufficient latitude, providing her at least two extensions, to July 22, 2013, to obtain new counsel. ECF Nos. 35, 42. Again, after a settlement agreement was negotiated in good faith in July 2014, the court granted two extensions of time to file the settlement documents, ultimately to December 29, 2014. ECF Nos. 60, 62. After the United States filed a notice indicating that Plaintiff’s counsel had not responded to attempts to finalize the settlement documents, ECF No. 63, the Court had to issue an order “to show cause in writing as to why this case should not be dismissed with prejudice for noncompliance with the local rules and/or court Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 8 of 12 9 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 orders, failure to prosecute pursuant to this Court’s inherent authority to control its docket, and/or Federal Rule of Civil Procedure 41(b).” Minute Order, ECF No. 65. Plaintiff’s failure to timely file the signed settlement documents by the December 29, 2014 deadline is the first of two court orders violated by Plaintiff. Plaintiff’s attorney responded to the OSC, confirming that he had been authorized by Plaintiff to settle the case, but indicating that he had no direct communication from his client for more than six months. ECF No. 67 at ¶¶ 1, 2. Plaintiff’s failure to communicate with her attorney was repeated after discovery was sent out and her deposition was noticed. The deposition was continued from August 19, 2016 to August 26, 2016, because Plaintiff was not responding to her attorney’s communications notifying her of the deposition. Montoya Dec. at ¶ 5; see also Joint Statement at 5:7-19. Although Plaintiff’s attorney still had no contact with Plaintiff, notwithstanding his numerous calls and the letters he sent her, the August 26 deposition was scheduled to go forward by the Government due to the impending close of discovery on October 3. Montoya Dec. at ¶ 8. After the Magistrate Judge issued an order compelling Plaintiff to appear for her deposition on October 3, it was on Friday, September 30, just one court day prior to the ordered deposition, that Plaintiff finally made contact with her attorney, telling him she was too sick to appear on Monday, October 3. Montoya Dec. at ¶ 13. However, Plaintiff provided no supporting documentation or corroboration to the Government to justify her violating the Court’s order that she appear on October 3 and be deposed. Id. Thus, this is the second court order that Plaintiff has violated. Given Plaintiff’s failure to pursue her case on more than one occasion, the first factor weighs in favor of dismissal. The Court’s need to manage its docket: The second Ferdik factor also favors dismissal. The repeated delays in this case no doubt has interfered with this Court’s docket management. Surely, the time the Court has had to expend on this case could have been devoted to other cases on the docket. “It is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants such as [Plaintiff].” Pagtalunan, 291 F.3d at 642 (quoting Ferdik, 963 F.2d at 1261). As Judge Trott wrote in his concurring opinion in Pagtalunan, after noting the Central District of California’s huge caseload at that time, arising from judicial vacancies, Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 9 of 12 10 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . . our trial courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and requirements of our courts. Here, [the plaintiff] is responsible for inexcusable delay, failure to comply with a court order, and failure to prosecute. In my view, the weight of the docket-managing factor depends upon the size and load of the docket, and those in the best position to know what that is are our beleaguered trial judges. Pagtalunan, 291 F.3d at 644 (Trott, J., concurring). This District, likewise, has a huge caseload, judicial vacancies, and beleaguered trial judges. Thus, this factor also weighs in favor of dismissal. Risk of prejudice to defendant: The third Ferdik factor also favors dismissal. “When considering prejudice to the defendant, ‘the failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure.... The law presumes injury from unreasonable delay.’” In re Eisen, 431 F.3d 1447, 1452-53 (9th Cir. 1994) (quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)); see also Southwest Marine Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (“Unreasonable delay is the foundation upon which a court may presume prejudice.”). This presumption can be rebutted, however, by a showing that no actual prejudice occurred. In re Eisen, 431 F.3d at 1452-53 (quoting Anderson, 542 F.2d at 524). In this case, there is actual prejudice to the Government because Plaintiff failed to respond to the Government’s Request for Admissions and failed to appear at her deposition as ordered by the Court without offering a reasonable explanation with supporting documentation. See, e.g., Lovelady v. Las Vegas Metropolitan Police Dept., No. 14–15227, 649 Fed. Appx. 358, 359 (9th Cir. April 21, 2016) (Lovelady failed to respond to discovery requests without offering reasonable explanation favored dismissal under third Ferdik factor). Furthermore, “[u]nnecessary delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale.” Pagtalunan, 291 F.3d at 643. This case was filed in March 2011, over five years ago. Complaint, ECF No. 1. The alleged facts upon which Plaintiff bases her claim date back to early 2003, over thirteen years ago. See, e.g., First Amended Complaint, ECF No. 14 at ¶ 7. After all these years, there is a strong likelihood that not only will witnesses’ memories fade, but that witnesses will have disappeared and cannot be located, which is prejudicial to the Government’s defense. Thus, the third factor also weighs in favor of dismissal. //// Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 10 of 12 11 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Availability of less drastic alternatives: The fourth Ferdik factor also favors dismissal. “[T]he case law suggests that warning a plaintiff that failure to obey a court order will result in dismissal can suffice to meet the ‘consideration of alternatives’ requirement.” Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987). In this case, Plaintiff had previously been given notice that her case could be “dismissed with prejudice for noncompliance with the local rules and/or court orders, failure to prosecute pursuant to this Court’s inherent authority to control its docket, and/or Federal Rule of Civil Procedure 41(b). Absent sufficient justification for Plaintiff’s failure to comply with this Court’s orders, this action will be dismissed.” Minute Order, ECF No. 65. Thus, the fourth factor also weighs in favor of dismissal. Public policy favoring disposition of cases on their merits: Ordinarily, the fifth Ferdik factor weighs against dismissal. Bruno v. Johnson, No. ED CV 14-1996-MWF (AS), 2016 WL 552026, at *4 (C.D. Cal. January 8, 2016), report and recommendation adopted sub nom. Bruno v. Frias, No. ED CV 14-1996-MWF (AS), 2016 WL 592727 (C.D. Cal. Feb. 11, 2016) (citing In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d at 1228). “However, this factor lends little support to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction.” Id. (citing In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d at 1228) (internal quotations/citations omitted). “This is because a case that is stalled or unreasonably delayed by a party’s failure to comply with deadlines ... cannot move forward toward resolution on the merits.” Id. (citing In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d at 1228) (internal quotations omitted). Thus, all five Ferdik factors weigh in favor of dismissal. Assuming arguendo the Court were to disagree and find that one or two of the factors weigh against dismissal, dismissal has been found not to be an abuse of the district court’s discretion and affirmed by the Ninth Circuit based on only three of the five factors favoring dismissal. See, e.g., Pagtalunan, 291 F.3d at 643. V. CONCLUSION For all of the foregoing reasons, the United States asks the Court to dismiss Plaintiff’s action against the United States under Fed. R. Civ. P. 41(b) and Fed. R. Civ. P. 37 for failure to prosecute, cooperate in discovery, and comply with the Court’s orders. The United States’ counterclaim Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 11 of 12 12 Memorandum in Support of U.S.’s Motion to Dismiss for Failure to Prosecute and Cooperate in Discovery 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 against Plaintiff should be preserved for resolution by dispositive motion. Respectfully submitted, DATED: October 4, 2016 PHILLIP A. TALBERT Acting United States Attorney /s/ Bobbie J. Montoya By: ___________________________ BOBBIE J. MONTOYA Assistant U.S. Attorney Attorneys for Defendant/Counter-Claimant United States of America Case 2:11-cv-00623-MCE-EFB Document 107-1 Filed 10/04/16 Page 12 of 12 1 Declaration of Bobbie J. Montoya in Support of United States’ Motion to Dismiss for Failure to Prosecute 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA PEGGY BOYNTON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. AND RELATED COUNTERCLAIM. CASE NO. 2:11-CV-00623-MCE-EFB DECLARATION OF BOBBIE J. MONTOYA IN SUPPORT OF UNITED STATES’ MOTION TO DISMISS FOR FAILURE TO PROSECUTE Date: November 3, 2016 Time: 2:00 p.m. Courtroom: 7 (14th Floor) I, BOBBIE J. MONTOYA, declare as follows: 1. I am an Assistant U.S. Attorney, and I am assigned to represent the United States of America’s interests in the above-captioned civil action. 2. I have personal knowledge of the following matters, except those stated on information and belief, and as to those matters I believe them to be true, and if called as a witness in this proceeding, after being duly sworn, I could and would competently testify thereto. 3. On March 7, 2011, Plaintiff Peggy Boynton filed the above-captioned action under the Federal Tort Claims Act (“FTCA”), alleging a negligence claim against the United States. ECF No. 1. Plaintiff alleges damage to her mobile home resulted from the negligence of the Bureau of Prisons (“BOP”) at the Federal Correctional Institution, Dublin, California (“FCI Dublin”). ECF PHILLIP A. TALBERT Acting United States Attorney BOBBIE J. MONTOYA Assistant United States Attorneys 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2775 Facsimile: (916) 554-2900 Attorneys for Defendant/Counter-Claimant United States of America Case 2:11-cv-00623-MCE-EFB Document 107-2 Filed 10/04/16 Page 1 of 4 2 Declaration of Bobbie J. Montoya in Support of United States’ Motion to Dismiss for Failure to Prosecute 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No. 14 (First Amended Complaint). On November 30, 2011, I, on behalf of the United States, filed an Answer to the First Amended Complaint for Damages and Counterclaim in Ejectment to Recover Possession of Real Property and Damages for Wrongful Detention. ECF No. 16. On February 7, 2012, the Clerk entered default against Plaintiff for her failure to respond to the United States’ counterclaim. ECF No. 19. Under the court’s Fourth Pretrial Scheduling Order, issued May 19, 2016, non-expert discovery closes on October 3, 2016. ECF No. 103 at 2:1-8. 4. On August 2, 2016, I caused a Notice of Depositions and Request for Production of Documents to be served on Mark T. Gallagher, as counsel for Plaintiff, noticing the depositions of Plaintiff Peggy Boynton and her husband John Boynton for August 19, 2016, at 10:00 a.m. and 2:00 p.m., respectively, at the U.S. Attorney’s Office. A true and correct copy of said notice is filed herewith as Exhibit A. Ms. Boynton was requested to produce documents at her deposition. Id. at 2. 5. On or about August 12, 2016, Mr. Gallagher contacted me and advised he was having difficulty getting in contact with his client to notify her and her husband about the depositions, that she was not responding to his communications. I agreed to continue the depositions to August 26, 2016, to allow Mr. Gallagher additional time to try to communicate with his client. 6. On August 12, 2016, I caused an Amended Notice of Depositions and Request for Production of Documents to be served on Mr. Gallagher. A true and correct copy of said notice is filed herewith as Exhibit B. The amended notice included a request for Ms. Boynton to produce documents at her deposition. Id. at 2. 7. On August 23, 2016, Mr. Gallagher again contacted me and advised that he had lost communication with his client, that he had called her numerous times and sent her letters by mail, but she had not responded back to him. 8. On August 24, 2016, I sent a letter to Mr. Gallagher, by email and regular U.S. mail, notifying him that the depositions would go forward on August 26, 2016, as scheduled. 9. On August 26, 2016, neither Ms. Boynton nor her husband appeared for the depositions. 10. On August 15, 2016, I caused the United States’ First Requests for Admission to be served on Mr. Gallagher. Plaintiff has not responded to said Requests for Admission, even though Case 2:11-cv-00623-MCE-EFB Document 107-2 Filed 10/04/16 Page 2 of 4 3 Declaration of Bobbie J. Montoya in Support of United States’ Motion to Dismiss for Failure to Prosecute 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 more than 30 days has elapsed since the discovery request was served, as required by Fed. R. Civ. P. 36(a)(3). 11. On September 13, 2016, I filed a motion to compel discovery on behalf of the United States. ECF No. 104. The motion was heard by the Magistrate Judge on September 21, 2016. See Minutes for Motion Hearing, ECF No. 105. Mr. Gallagher appeared at the hearing but Plaintiff did not. The Magistrate Judge granted the United States’ motion and ordered Plaintiff to “appear for her deposition on October 3, 2016 at 10:00 a.m. at the United States Attorney’s Office, 501 I Street, Sacramento, CA 95814, and produce all documents relied upon to prepare for the deposition.” Order, ECF No. 106. 12. On September 26, and again on September 29, 2016, Mr. Gallagher emailed me that he still had no contact with Plaintiff. 13. On Friday, September 30, 2016, at 9:01 a.m., Mr. Gallagher left me a cryptic voicemail message indicating that he had just received a call from his client, that she was going to Kaiser Hospital in Pleasanton, and that she is too sick to attend her deposition on Monday, October 3. I, however, was not provided with any supporting documentation or corroboration. Mr. Gallagher further indicated that it was the first contact he had had with his client since the April 4, 2016 settlement conference. He said that he was unavailable until after 12:00 p.m., that he could be reached at a specific phone number after then. I called him back around 12:30 p.m., at the number he had given, and only got his voicemail. I left a message that the deposition would be cancelled based on his earlier call. Mr. Gallagher never called me back to further discuss the matter. Furthermore, I have not received any supporting documentation or corroboration – no doctor’s note or affidavit, and no details whatsoever regarding the nature of Plaintiff’s illness, its duration, treatment, the kind of doctor she needed, or whether she required Emergency Room services – that would justify Plaintiff’s violating the Court’s order that she appear on October 3 and be deposed. I swear under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief. //// //// Case 2:11-cv-00623-MCE-EFB Document 107-2 Filed 10/04/16 Page 3 of 4 4 Declaration of Bobbie J. Montoya in Support of United States’ Motion to Dismiss for Failure to Prosecute 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Executed this 4th day of October, 2016. /s/ Bobbie J. Montoya ________________________________ BOBBIE J. MONTOYA Assistant U.S. Attorney Case 2:11-cv-00623-MCE-EFB Document 107-2 Filed 10/04/16 Page 4 of 4