United States District Court, D. Nevada
JAWVAN E. COOK, Plaintiff,
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendant.
REPORT & RECOMMENDATION
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
matter is before the Court due to Plaintiff Jawvan E.
Cook's failure to comply with the Court's order (ECF
No. 19) and order to show cause (ECF No. 20).
12, 2017, this Court issued an order (ECF No. 19) to initiate
a scheduling conference with Defendant, pursuant to his
duties under Local Rule 26-1(a) and Federal Rule of Civil
Procedure 26(f). Plaintiff was given a deadline of August 12,
2017, but to date, the parties have not submitted a
September 7, 2017, the Court issued an order to show cause
(ECF No. 20) why Plaintiff had failed to follow the
Court's previous order. Plaintiff was given a deadline to
either show cause or submit a scheduling order no later than
September 21, 2017. Plaintiff was warned that failure to
comply with the order may result in a recommendation of
dismissal of this case. To date, Plaintiff has not responded
to either order, or made any further filings in this matter.
underlying purpose of the Federal Rules of Civil Procedure is
to “secure the just, speedy, and inexpensive
determination of every action and proceeding.”
Fed.R.Civ.P. 1. The rules provide several mechanisms that
allow courts to accomplish this goal through the use of
sanctions against parties that fail to comply with court
orders or that unnecessarily multiply proceedings. Federal
Rule of Civil Procedure 16 is the central pretrial rule that
authorizes courts to manage their cases “so that
disposition is expedited, wasteful pretrial activities are
discouraged, the quality of the trial is improved, and
settlement is facilitated.” In re
Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 1217,
1227 (9th Cir. 2006). Specifically, Rule 16(f) “puts
teeth into these objectives by permitting the judge to make
such orders as are just for a party's failure to obey a
scheduling or pretrial order, including dismissal.”
Id. Rule16(f) provides in relevant part that
“[o]n motion or on its own, the court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails
to appear at a scheduling or other pretrial conference . . .
or fails to obey a scheduling order or other pretrial
order.” Fed.R.Civ.P. 16(f)(1).
sanctions under Rule 37(b)(2)(A) include striking pleadings
and rendering a default judgment against the disobedient
party. Fed.R.Civ.P. 37(b)(2)(A)(iii), (vi). “A court
must consider the following five factors before striking a
pleading or declaring default: (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
other party; (4) the public policy favoring the disposition
of cases on their merits; and (5) the availability of less
drastic sanctions.” Hester v. Vision Airlines,
Inc., 687 F.3d 1162, 1169 (9th Cir. 2012) (quotation
omitted). Only “willfulness, bad faith, or fault of the
party” justify terminating sanctions. Id.
(quotation omitted). It is within the court's discretion
whether to impose discovery sanctions. Id.
the first two factors, the public's interest in
expeditiously resolving this litigation and the court's
interest in managing its docket, weigh in favor of
terminating sanctions. Plaintiff has completely disengaged
from participation in this case, as demonstrated by his
failure to initiate a scheduling conference, draft a
scheduling order, comply with the Court's orders, or to
respond to the Court's order to show cause.
Plaintiff's repeated failures to comply with the
court's orders are inconsistent with Rule 1's
directive to “secure a just, speedy, and
inexpensive” determination of this action.
Plaintiff's inaction have also interfered with the
Court's management of its docket, multiplied these
proceedings, and have squandered the Court's resources.
third factor and fourth factors, risk of prejudice to the
other parties and the public policy favoring disposition of
cases on their merits, also weigh in favor of terminating
sanctions. Plaintiff's failure to comply with the
court's orders have made it impossible for this case to
move forward. See United States v. High Country
Broad., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curiam).
Plaintiffs failure to respond to the Court's orders also
are prejudicial to the other parties, who are entitled to
conduct discovery, proceed to trial, and obtain a rightful
decision in this case.
sanctions less drastic than terminating sanctions are
unavailable because Plaintiff has refused to comply with
multiple orders. Given Plaintiffs failure to comply with past
orders, the Court has no reason to believe he would comply
with future orders.
that these factors all weigh in favor of terminating
sanctions, the Court will recommend that Plaintiffs Complaint
(ECF No. 6) be stricken as a sanction for his failure to
comply with the Court's orders.
IS HEREBY RECOMMENDED that Plaintiffs Complaint (ECF
No. 6) be stricken, and Plaintiffs claim be dismissed
with prejudice for ...