United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION
FOLEY, JR. United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Discovery Sanctions (ECF No. 124), filed on November 27,
2017. Defendant filed an Opposition (ECF No. 132) on December
11, 2017 and Plaintiff filed a Reply (ECF No. 134) on
December 18, 2017.
the District Judge's June 22, 2017 Order (ECF No. 77)
granting summary judgment in Plaintiff's favor on its
breach of contract claim, the Court reopened discovery.
See Scheduling Order (ECF No. 87). Thereafter,
Plaintiff served Defendant with an amended notice of
deposition, which was to take place in Las Vegas, Nevada on
October 20, 2017. This was Plaintiff's second attempt at
deposing Defendant Michael, who had failed to appear at a
previously scheduled deposition on December 13, 2016.
See Motion to Compel (ECF No. 44).
response to the amended notice of deposition, Defendant
Michael filed a motion for protective order on September 29,
2017. See ECF No. 111. The Court held a hearing on
Defendant's motion on October 16, 2017 and denied the
same. Based on the Court's ruling, Plaintiff proceeded
with the October 20, 2017 deposition date. Defendant Michael
again failed to appear. As a result, Plaintiff now seeks
sanctions against Defendant for his failure to appear at the
October 20, 2017 and December 13, 2016 depositions. Plaintiff
argues that Defendant's conduct has prevented it from
obtaining testimony from Defendant that would support its
claims against him and has caused Plaintiff to incur
unnecessary attorney's fees and costs associated with the
depositions and related motion practice. Motion for
Sanctions (ECF No. 124), 4.
37(b) of the Federal Rules of Civil Procedure provides the
court with a wide range of sanctions for a party's
failure to adequately engage in discovery or comply with
discovery orders. “The Rule provides a panoply of
sanctions, from the imposition of costs to entry of
default.” United States v. Taylor, 166 F.R.D.
356, 363 (M.D. N.C. ), aff'd, 166 F.R.D. 367 (M.D. N.C.
1996). “Discovery sanctions serve the
objectives of discovery by correcting for the adverse effects
of discovery violations and deterring future discovery
violations from occurring.” Taylor v.
Illinois, 484 U.S. 400, 425 (1988). The Ninth Circuit
reviews a district court's sanction order under an abuse
of discretion standard. Sigliano v. Mendoza, 642
F.2d 309 (9th Cir. 1981); See also United States v.
Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1369
(9th Cir. 1980); David v. Hooker, Ltd., 560 F.2d
412, 418-19 (9th Cir. 1977); 6 J. Moore, Federal Practice s
37.08 (2d ed. 1976). Thus, the district court has great
latitude in imposing sanctions under Rule 37. Lew v. Kona
Hosp., 754 F.2d 1420, 1425-26 (9th Cir. 1985).
37(d)(1) specifically authorizes a court to issue sanctions
when a party or its representative, or a person designated
under Rule 30(b)(6) or 31(a)(4), fails to appear for that
person's deposition. Fed.R.Civ.P. 37(d)(1)(A)(i). Such
sanctions may include (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 into evidence, and (iii)
ordering the disobedient party to pay the reasonable expenses
(including attorney fees) caused by the party's failure
to appear. See Fed. R. Civ. P. 37(d)(3). The
sanctions must, however, bear a reasonable relationship to
the subject of discovery that was frustrated by the
sanctionable conduct. Navellier v. Sletten, 262 F.3d
923, 947 (9th Cir.2001), cert. denied sub nom., McLachlan
v. Simon, 536 U.S. 941, 122 S.Ct. 2623, 153 L.Ed.2d 806
(2002). Such sanctions “are appropriate only in
‘extreme circumstances' and where the violation is
‘due to willfulness, bad faith, or fault of the
party.'” Fair Housing of Marin v. Combs,
285 F.3d 899, 905 (9th Cir.), cert. denied, 537 U.S.
1018, 123 S.Ct. 536, 154 L.Ed.2d 425 (2002) (citations
omitted); Computer Task Group, Inc. v. Brotby, 364
F.3d 1112, 1115 (9th Cir.2004) (per curiam).
“Disobedient conduct not shown to be outside the
litigant's control meets this standard.” In re
Phenylpropanolamine (PPA) Products Liability Litig., 460
F.3d 1217, 1233 (9th Cir.2006) (citations omitted).
in deciding whether to grant a motion for sanctions under
Rule 37(b)(2)(A) for noncompliance with discovery, the Court
should consider 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 party seeking sanctions]; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions.” Rio
Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007,
1022 (9th Cir.2002); Computer Task Group, Inc., 364
F.3d at 1115. “Where a court order is violated, the
first two factors support sanctions and the fourth factor
cuts against a default. Therefore, it is the third and fifth
factors that are decisive.” Payne v. Exxon
Corp., 121 F.3d 503, 507 (9th Cir.1997); Computer
Task Group, Inc., 364 F.3d at 1115.
seeks the following sanction order against Defendant Michael
based on his failure to appear for two scheduled depositions:
(1) ordering facts as established that Defendant Michael did
not have funds sufficient to cover the credit advances that
he requested and received from Caesars on September 20-21,
2014, the detail of such facts which constitute fraud upon
(2) prohibiting Defendant Michael from supporting his
defenses to or opposing Caesars' fraud claim or from
introducing any evidence to oppose Caesars' fraud claim;
(3) awarding Caesars' its reasonable expenses (including
attorneys' fees) for two depositions where Defendant
Michael failed to appear, as well as the need to file two (2)
discovery motions related to such failures.
(ECF No. 124), at 3:9-17. Defendant argues that these
essentially dispositive sanctions are not warranted.
Specifically, Defendant argues that at the time of the
October 20, 2017 deposition he had filed an appeal of the
District Court's Order (ECF No. 77), which acted as a
stay of this case even though ...