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Foley v. Arostegui

United States District Court, D. Nevada

September 25, 2019





         Before the Court is Defendants Lorea Arostegui and Clark County, Nevada’s Motion for Terminating Sanctions, ECF No. 149, Plaintiff’s Response, ECF No. 154, and Defendants’ Reply, ECF No. 157. The Court grants the Motion for Terminating Sanctions and dismisses pending motions as moot.


         Plaintiff filed an Amended Complaint (ECF No. 6) in this matter on April 10, 2014 and Defendants filed a Motion to Dismiss the Amended Complaint (ECF No. 28) on January 20, 2015. A hearing on the motion was held September 21, 2015. The Court dismissed all of Plaintiff’s claims except for Plaintiff’s Due Process claim. ECF No. 42. Plaintiff filed a Second Amended Complaint on September 2, 2016. ECF No. 62. Defendants filed a Motion for Summary Judgment on January 1, 2017. ECF No. 67. The Court denied that motion as to Plaintiff’s due process claim against Defendant Clark County and Plaintiff’s First Amendment retaliation claim against Defendant Arostegui and granted the motion for the defendants as to every other claim. ECF No. 78.

         On January 25, 2019, Plaintiff filed an Emergency Motion to Reopen Discovery on January 24, 2019. ECF No. 117. The Court granted this motion on January 29, 2019. ECF No. 123. The Court also granted a stipulation to Reopen Discovery on March 20, 2019. ECF No. 132. On May 16, 2019, Defendants filed a Motion to Compel (ECF No. 139) and on May 17, 2019, an Emergency Motion to Compel (ECF No. 14). On May 30, 2019, The Court granted Plaintiff’s Motion to Withdraw as Counsel (ECF No. 134). ECF No. 141. The Court granted in part and denied in part the Emergency Motion to Compel and denied the Motion to Compel as moot. Defendants were further ordered to re-send remaining discovery requests directly to Plaintiff via email by May 30, 2019 and Plaintiff was ordered to respond by June 13, 2019. ECF No. 141. Plaintiff filed a Notice of Appearance on July 1, 2019. ECF No. 147. Defendants filed the instant Motion Terminating Sanctions on July 2, 2019. ECF No. 149. Plaintiff responded on July 16, 2019, ECF No. 154, and Defendant replied on July 23, 2019, ECF No. 157.

         The Court stayed the case pending resolution of the instant motion on August 5, 2019. ECF No. 160.


         The Court makes the following factual findings from the record. The Court granted the parties’ stipulation to extend the discovery deadline on March 20, 2019. ECF No. 132. This stipulation extended the discovery deadline until May 20, 2019. Id. Plaintiff did not respond to Defendants’ First Set of Requests for Production and Defendants filed, inter alia, an Emergency Motion to Compel (ECF No. 140). At a hearing on the motion, the Court stated to Plaintiff that he had fourteen days to respond as appropriate to Defendants’ Requests for Production and that discovery would close on June 28, 2019. The Court advised Plaintiff that he must respond but that he could notify Defense counsel if his jury duty obligations required a renewed discovery schedule. The Court further warned Plaintiff that if he did not respond and had no legitimate excuse for failure to respond, his claims could be dismissed, and he could be subject to monetary sanctions. Plaintiff acknowledged that he understood this warning.

         Plaintiff’s counsel filed a Notice of Appearance on July 1, 2019. On July 2, 2019 Defendants filed a Motion for Terminating Sanctions, stating Plaintiff had failed to answer the Requests for Production of documents. Mot. Terminating Sanctions at 3-4, ECF No. 149.


         “Courts need not tolerate flagrant abuses of the discovery process.” Campbell Indus. v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980). At the pre-trial stage, a district court can impose case-dispositive sanctions for discovery abuses under Federal Rule of Civil Procedure 37, which states: “[i]f a party . . . fails to obey an order to provide or permit discovery, ” the court may, inter alia, “render default judgment against the disobedient party.” Fed.R.Civ.P. 37(b)(2)(A)(vi). The Ninth Circuit has held that “belated compliance with discovery orders does not preclude the imposition of sanctions.” Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (citing Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam)). Under FRCP 37(b), if a party fails to obey an order to provide or permit discovery, including an order under Rule 26(f), then the court where the action is pending may issue “further just orders, ” and may “dismiss the action or proceeding in whole or part.” Fed.R.Civ.P. 37(b)(2)(A)(v).

         Because default judgment is a harsh penalty, “the district court must weigh five factors before imposing dismissal: (1) the public's interest in expeditious resolution of the 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.” Porter v. Martinez, 941 F.2d 732, 733 (9th Cir. 1991) (internal quotations omitted). The fifth factor has three subparts, including “whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions.” Conn, Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (citing Valley Eng'rs v. Electric Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). The key factors are prejudice to the party seeking sanctions and the availability of lesser sanctions. Henry v. Gill Indus., 983 F.2d 943, 948 (9th Cir. 1993) (quoting Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990)). These factors, however, “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 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (citation and internal quotations omitted); see also Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (noting that the district court need not make explicit findings as to each factor and upholding a terminating sanction where the court only considered the plaintiff's level of culpability, the prejudice suffered, and the availability of lesser sanctions).

         For dismissal to be proper, the conduct to be sanctioned must also be due to willfulness, fault, or bad faith. Henry, 983 F.2d at 947–48 (citing Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985)). The Court may consider the entirety of a litigant's conduct, including prior conduct which has already been subject to sanction, in weighing a sanctions motion. See Id . at 947. ‚ÄúDisobedient conduct not shown to be ...

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