Nix v. Hudson Baylor Corp. et al

Filing 46

ORDER denying 40 Motion to Dismiss and denying as moot 45 Motion to Strike. See PDF document for details. Signed by Judge John W Sedwick on 6/11/12.(JWS)

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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JAMES D. NIX, Plaintiff, vs. HUDSON BAYLOR CORPORATION, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) 2:10-cv-00973 JWS ORDER AND OPINION [Re: Motions at Dockets 40 & 45] I. MOTION PRESENTED At docket 40, defendant Hudson Baylor Corporation (“defendant”) moves to dismiss the case pursuant to Federal Rules of Civil Procedure 41(b) and 16(f)(1)(C). Pro se plaintiff James D. Nix (“plaintiff”) opposes the motion at docket 41. Defendant’s reply is at docket 43. Plaintiff filed a response to defendant’s reply (a sur-reply) at docket 44. At docket 45, defendant moves to strike plaintiff’s sur-reply. Oral argument was not requested with respect to either motion and would not assist the court. 1 2 II. DISCUSSION A. Motion at Docket 45 Defendant correctly argues that plaintiff improperly filed a sur-reply. It is not 3 4 necessary to strike the document, however, because the court will not consider 5 plaintiff’s sur-reply in resolving the motion at docket 40. 6 B. Motion at Docket 40 In the court’s scheduling and planning order of August 1, 2011, the parties were 7 8 advised that final witness lists were to be filed not later than February 6, 2012. The 9 parties were warned that “[o]nly those witnesses disclosed in a timely filed witness list 10 [would] be permitted to testify at trial.”1 Defendant filed its final witness list on 11 February 6, 2012. Plaintiff did not file his witness list until April 30, 2012, when he 12 responded to the present motion. Plaintiff’s witness list contains only one name: Shelly 13 Kirker. 14 Rule 16(f) provides that “[o]n motion or on its own, the court may issue any just 15 orders, including those authorized by Rule 37(b)(2)(A)(ii)-(iv), if a party . . . fails to obey 16 a scheduling . . . order.”2 Among other sanctions, Rule 37(b)(2) contemplates 17 “dismissing the action . . . in whole or in part.”3 However, to determine whether a case 18 dispositive sanction is appropriate, a court must consider “(1) the public’s interest in 19 expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the 20 risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition 21 of cases on their merits; and (5) the availability of less drastic sanctions.”4 22 23 24 1 25 2 Doc. 33 at 5. Fed. R. Civ. P. 16(f)(1)(C). 26 3 Fed. R. Civ. P. 37(b)(2)(A)(v). 27 4 28 Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). -2- 1 The first two factors will always weigh in favor of dismissal when a scheduling 2 order is violated. That is so here. However, the final three factors weigh against 3 dismissal. The risk of prejudice to defendant is slight because plaintiff’s late-filed 4 witness list contains only one name. The public policy favoring disposition of cases on 5 their merits also weighs against dismissal. In considering the availability of less drastic 6 sanctions, a court should evaluate “whether [it] has considered lesser sanctions, 7 whether it tried them, and whether it warned the recalcitrant party about the possibility of 8 case-dispositive sanctions.”5 Here, the court has not had occasion to consider or 9 impose lesser sanctions because plaintiff has not been recalcitrant. Lesser sanctions 10 are available. In light of plaintiff’s explanation that he thought a joint scheduling and 11 planning memorandum that listed Shelly Kirker as a person to be deposed would be 12 sufficient,6 the court concludes that sanctions are not necessary. 13 14 III. CONCLUSION For the reasons above, defendant’s motion to strike at docket 45 is DENIED as 15 moot. Defendant’s motion to dismiss at docket 40 for failure to follow the scheduling 16 and planning order is DENIED. 17 DATED this 11th day of June 2012. 18 /s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 5 28 6 Id. Doc. 32 at 2. -3-

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