United States District Court, D. Nevada
June 4, 2014
Floyd Mayweather, Plaintiff,
The Wine Bistro, LLC, et al., Defendants.
REPORT AND RECOMMENDATION IN PART [DOC. 44] AND GRANTING PLAINTIFF'S MOTION FOR
AN ORDER TO SHOW CAUSE [DOC. 42]
JENNIFER A. DORSEY, District Judge.
Before the Court is Magistrate Judge Ferenbach's March 28, 2014, Report and Recommendation recommending that the District Court grant Plaintiff Floyd Mayweather's Motion for an Order to Show Cause Why Defendant Blake Turner's Answer Should Not be Stricken and Default Entered [Doc. 42] and dismiss Turner from this case for his failure to comply with the court-ordered discovery process. Doc. 44 at 2-3. Objections were due April 14, 2014. Neither Mayweather nor Turner filed an objection to Judge Ferenbach's Report and Recommendation. "[N]o review is required of a magistrate judge's report and recommendation unless objections are filed."
Federal Rule of Civil Procedure 37(b)(2) provides that a party who "fails to obey an order to provide or permit discovery, including an order under Rule 26(f)... may issue further just orders." Sanctions for such failures include, inter alia, (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 supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; or (vi) rendering a default judgment against the disobedient party. Of these sanctions, striking pleadings is viewed as an intermediate remedy,  whereas a default judgment or dismissal are "authorized only in extreme circumstances and only where the violation is due to willfulness, bad faith, or fault of the party." A combined request to strike pleadings in full and enter default against a party has been characterized as "severe." "The scope of sanctions for failure to comply with a discovery order is committed to the sound discretion of the district court."
To evaluate whether striking an answer and entering default under Rule 37(b)(2)(iii) is appropriate, courts consider 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 party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Prejudice and the availability of lesser sanctions are commonly deemed the most important of these factors.
Judge Ferenbach found that "all of the five factors except number four weigh heavily in favor of striking Defendant Turner's answer and entering default." Doc. 44 at 3. Judge Ferenbach noted that Turner failed to participate in the case or comply with the Court's discovery orders, as he failed to: (1) engage in the discovery process, in violating Rule 26; (2) submit a discovery plan and scheduling order; (3) appear at a December 18, 2013, discovery hearing; and (4) appear for his deposition on the date Plaintiff had scheduled. Doc. 44 at 1-2. Turner was provided with an opportunity to object to Judge Ferenbach's Report and Recommendation, but declined to contest the conclusions reached.
The Court agrees with Judge Ferenbach that Turner's conduct is sufficiently "willful" to warrant striking his answer in full and entering default against him, as authorized by Rule 37(b)(2)(iii). As Turner has completely failed to participate in discovery, even after being instructed by the Court to do so, no less drastic sanction is now available; Plaintiff will be prejudiced by continuing to expend resources to collect facts sufficient to bring a merits-based resolution to his claims against Turner. The Court adopts Judge Ferenbach's Report and Recommendation to the extent it is consistent with this order.
Accordingly, and with good cause appearing,
It is HEREBY ORDERED that Judge Ferenbach's Report and Recommendation [Doc. 44] is ADOPTED to the extent consistent with this Order.
It is FURTHER ORDERED that Plaintiff's Motion for Order to Show Cause [Doc. 42] is GRANTED, Defendant Turner's Answer [Doc. 10] is stricken, and the clerk is instructed to enter default against him.