Blackmore et al v. Larson et al

Filing 54

ORDER: Defendants' "Motion to Dismiss Plaintiffs' First Amended Complaint with Prejudice: 50 is denied. IT IS FURTHER ORDERED setting a telephonic Status Conference for September 27, 2018 at 2:00 p.m. Counsel for Plaintiffs shall initiate the call to chambers (602-322-7620). Signed by Magistrate Judge Eileen S Willett on 9/20/2018. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carla Blackmore, et al.,
Plaintiff,

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ORDER

v.

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No. CV-17-01137-PHX-ESW

G Brent Larson, et al.,

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Defendant.

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The Court has reviewed the parties’ briefing concerning Defendants’ “Motion to

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Dismiss Plaintiffs’ First Amended Complaint with Prejudice” (Doc. 50). 1 For the reasons

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set forth herein, the Court will deny Defendants’ Motion (Doc. 50).
I. BACKGROUND

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This is a personal injury action originally filed in the U.S. District Court, Central

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District of California. Upon Plaintiffs’ unopposed Motion for Change of Venue, the case

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was transferred to the District of Arizona in April 2017. (Docs. 16, 21). In July 2017,

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the parties met and conferred in accordance with Federal Rule of Civil Procedure 26(f).

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(Doc. 38). The Court subsequently issued a Case Management Order (Doc. 39). The

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Court set April 2, 2018 as the discovery deadline. (Id. at 2).

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On April 4, 2018, Defendants filed a Motion to Compel Discovery (Doc. 43)

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alleging that Plaintiffs failed to respond to discovery propounded in June 2017. Plaintiffs

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The parties agreed to the exercise of Magistrate Judge jurisdiction. (Doc. 31).

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did not respond to the Motion to Compel. On April 26, 2018, the Court granted the

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Motion to Compel and ordered Plaintiffs to respond to the propounded discovery no later

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than May 4, 2018. (Doc. 48). It is undisputed that Plaintiffs did not respond to the

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discovery by this deadline.

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Plaintiffs explain that Eva Hollands, who was the initial attorney assigned to the

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case, left the firm in December 2017. (Doc. 51 at 4). Purportedly, the case was not

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reassigned within the firm to Plaintiffs’ current counsel of record, Joseph Wangler, until

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March 2018. (Id.). Mr. Wangler, explains that because he was not admitted to practice

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in the District of Arizona, he had to obtain pro hac vice admission before he could appear

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in the case. (Id. at 8). In his April 5, 2018 letter to defense counsel, Mr. Wangler states

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that “[d]ue to an internal miscommunication in [his] office,” he had not formally sought

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pro hac vice admission to the District of Arizona, but anticipated that it would be done by

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the next day. (Id. at 67). Mr. Wangler’s letter also addresses Defendants’ Motion to

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Compel, conveying Plaintiffs’ “position that the discovery requests in question were

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propounded improperly before the FRCP Rule 26 Initial Case Conference and the FRCP

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Rule 16(b) Scheduling Order.” (Id.) (emphasis in original). Mr. Wangler then states that

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there is no issue with providing the discovery responses and that the responses are

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prepared, he is “just waiting on the pro hac application to be submitted . . . .” (Id.).

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On May 9, 2018, Defendants filed the pending Motion to Dismiss (Doc. 50),

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which requests that the Court dismiss this action with prejudice as a sanction for

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Plaintiffs’ alleged continued failure to respond to discovery. Plaintiffs have provided a

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copy of a May 9, 2018 letter from Ms. Hollands to defense counsel regarding the Motion

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to Dismiss. (Doc. 51 at 70-71). In her letter, Ms. Hollands notes that Mr. Wangler “is

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still waiting for documentation from the Central District of California in order to

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complete the pro hac vice process.”

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Plaintiffs’ discovery responses are enclosed. (Id.). On May 21, 2018, Mr. Wangler wrote

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defense counsel, explaining that his application for pro hace vice admission was

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approved and that he has caused Plaintiffs’ discovery responses to be re-generated under

(Id. at 71).

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Ms. Hollands’ letter states that

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his name and signature. (Id. at 73). Mr. Wangler’s letter also states that he is producing

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to defense counsel all responsive documents in Plaintiffs’ possession, custody, or control.

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(Id.).

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II. DISCUSSION

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Pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), the Court may issue

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appropriate sanctions when a party fails to comply with discovery orders. The Court has

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broad discretion in issuing the appropriate sanction. However, a case-dispositive sanction

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is appropriate only if the plaintiff’s noncompliance is “due to willfulness, bad faith or

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fault.” Henry v. Gill Industries, 983 F.2d 943, 946 (9th Cir. 1993) (citation omitted). This

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requirement does not require a finding of wrongful intent or any particular mental state.

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Rather, “[d]isobedient conduct not shown to be outside the control of the litigant is

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sufficient to demonstrate willfulness, bad faith, or fault.” Jorgensen v. Cassiday, 320 F.3d

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906, 912 (9th Cir. 2003) (citation omitted).

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The Ninth Circuit has “constructed a five-part test, with three subparts to the fifth

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part, to determine whether a case-dispositive sanction under Rule 37(b)(2) is just[.]”

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Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th

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Cir. 2007). The factors are as follows:
(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. The sub-parts of the
fifth factor are 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.

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Id. (footnotes omitted). The Ninth Circuit has explained that the above “‘test’ is not

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mechanical. It provides the district court with a way to think about what to do, not a set

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of conditions precedent for sanctions or a script that the district court must follow[.]” Id.

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“The most critical factor to be considered in case-dispositive sanctions is whether a

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party's discovery violations make it impossible for a court to be confident that the parties

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will ever have access to the true facts.” Id. at 1097 (internal quotation marks and citation

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omitted).

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The discovery at issue in Defendants’ Motion to Dismiss was propounded on June

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21, 2017, prior to the parties’ Rule 26(f) meeting. In their brief opposing the Motion to

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Dismiss, Plaintiffs correctly explain that under Federal Rule of Civil Procedure 26(d)(1),

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“a party may not seek discovery from any source before the parties have conferred as

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required by Rule 26(f), except in a proceeding exempted from initial disclosure

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under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court

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order.”

(Doc. 51 at 3-4).

Here, the parties did not obtain a Court order to

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begin discovery prior to the Rule 26(f) conference. Further, there is no evidence that the

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parties stipulated to commencing discovery prior to conferring pursuant to Rule 26(f).

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Defendants’ June 21, 2017 discovery requests were prematurely propounded. 2 In

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addition, Defendants do not explain why they waited until after the expiration of the

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discovery deadline to file their Motion to Compel. 3 Yet as Plaintiffs rightly concede,

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Plaintiff’s “could have, and should have, handled this discovery issue in a better manner.”

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(Doc. 51 at 5). But the Court does not find that Plaintiffs have so damaged the integrity

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of the discovery process that there is no assurance that the case can proceed on the true

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facts. See Connecticut Gen. Life Ins. Co., 482 F.3d at 1097 (“Where a party so damages

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the integrity of the discovery process that there can never be assurance of proceeding on

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the true facts, a case dispositive sanction may be appropriate.”). After considering the

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five-part test explained above, the Court does not find that the record in this case supports

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the issuance of terminating sanctions. As such, Defendants’ Motion to Dismiss (Doc. 50)

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will be denied. The Court will set a telephonic conference to discuss the status of the

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case and amendment of the pretrial deadlines.

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Defendants’ Motion to Compel (Doc. 43) did not expressly alert the Court that
the discovery was propounded prior to the parties’ Rule 26(f) meeting.
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The Court’s Case Management Order provides that the April 2, 2018 discovery
deadline includes resolution of discovery disputes. (Doc. 39 at 2 n.2).
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III. CONCLUSION

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Based on the foregoing,

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IT IS ORDERED denying Defendants’ “Motion to Dismiss Plaintiffs’ First

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Amended Complaint with Prejudice” (Doc. 50).
IT IS FURTHER ORDERED setting a telephonic Status Conference for

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September 27, 2018 at 2:00 p.m.

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chambers (602-322-7620).

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Counsel for Plaintiffs shall initiate the call to

Dated this 20th day of September, 2018.

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