Johnson v. Union Pacific Railroad Company

Filing 71

ORDER DISMISSING CASE: IT IS ORDERED that the case shall be dismissed with prejudice. The Clerk's Office shall terminate the case accordingly. See attachment for details. Signed by Judge Steven P Logan on 11/27/2019. (CLB)

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W.O.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Dalonno C. Johnson,

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Plaintiff,
vs.

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Union Pacific Railroad Company,
Defendant.

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No. CV-17-04803-PHX-SPL
ORDER

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Plaintiff failed to appear for his deposition scheduled for Thursday, October 10, 2019

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at 10:00 a.m. (Doc. 53) The parties filed a Joint Statement of Discovery Dispute, where

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Plaintiff argued that his absence from the deposition should be excused. (Doc. 60) The

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Court set a discovery dispute hearing for November 26, 2019 at 9:00 a.m. (Doc. 61)

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Plaintiff again failed to appear at the hearing. (Doc. 70) For the following reasons, the

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Court will dismiss this case for failure to prosecute.

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I.

Background

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Plaintiff sustained multiple injuries at work while employed as a railroad conductor for

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Defendant. (Doc. 18 at 1-5) On December 29, 2017, Plaintiff, acting pro se, filed this

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lawsuit. (Doc. 1) On June 29, 2018, Plaintiff filed an amended complaint, alleging claims

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under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq.; the Federal Railroad

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Safety Act, 49 U.S.C. § 20109; the Federal Safety Appliance Act, 49 U.S.C. § 20302 et

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seq.; and the federal regulations governing track safety standards, 49 C.F.R. § 213.1 et seq.

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(Doc. 18 at 1-5) The Court set the discovery deadline for January 17, 2020, and the parties

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began the discovery process. (Docs. 28, 45)

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On September 20, 2019, Defendant filed notice of Plaintiff’s deposition scheduled for

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October 10, 2019. (Doc. 53) On September 25, 2019, Plaintiff filed a Motion to Appoint

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Counsel. (Doc. 54) On October 8, 2019, Plaintiff sent the defense counsel several emails

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indicating that he did not intend to appear for the deposition. (Doc. 60-1 at 12-15) On

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October 9, 2019—one day before the deposition—Plaintiff filed an Emergency Motion for

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Protective Order. (Doc. 57) In the motion, Plaintiff requested a protective order because

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Plaintiff’s Motion to Appoint Counsel was still outstanding. (Doc. 57 at 3) At 10:00 a.m.

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on the day of the deposition, Plaintiff failed to appear. (Doc. 60 at 3-4) The same day, the

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Court issued an order denying Plaintiff’s request for counsel and his request for a protective

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order. (Docs. 58, 59)

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On October 15, 2019, Plaintiff and Defendant filed a Joint Statement of Discovery

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Dispute. (Doc. 60) Pursuant to Federal Rule of Civil Procedure 30(g), Defendant sought

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sanctions in the amount of $500 due to Plaintiff’s failure to attend his deposition. (Doc. 60

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at 2) Defendant asserted that it incurred $270 in deposition-related expenses and $230 in

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attorneys’ fees. (Doc. 60 at 2)

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In response, Plaintiff argued that Defendant unilaterally set a time for the deposition,

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and Defendant refused to reschedule when Plaintiff indicated that he could not appear.

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(Doc. 60 at 3) Plaintiff asserted that he has “a disability that [hinders] his physical and

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cognitive capabilities,” and he felt that his interests would be better protected with

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representation at the deposition. (Doc. 60 at 3) Therefore, Plaintiff wanted to wait until

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after the Court ruled on his Motion to Appoint Counsel before scheduling the deposition.

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(Doc. 60 at 3-4) The Court set a hearing on the discovery dispute for November 26, 2019

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at 9:00 a.m. (Doc. 61) Plaintiff failed to appear for the hearing. (Doc. 70)

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II.

Discussion

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“Plaintiffs have the general duty to prosecute their case[,] [and] . . . [a] plaintiff’s failure

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to participate in discovery may [] be deemed a failure to prosecute.” See Briley v. Valley

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Medtrans Inc., No. CV-16-00941-PHX-ESW, 2018 WL 826548, at *1 (D. Ariz. Feb. 12,
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2018) (citing Fidelity Phila. Tr. Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th

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Cir. 1978)). A court may act sua sponte when dismissing a case for lack of prosecution.

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Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). Only “unreasonable” delay will support

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a dismissal for lack of prosecution. Id. A district court must weigh five factors to determine

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whether dismissal for lack of prosecution is warranted: “(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk

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of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and

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(5) the public policy favoring disposition of cases on their merits.” Calloway v. Hayward,

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651 Fed.Appx. 637, 639 (9th Cir. 2016). “Dismissal may be affirmed when at least four

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factors favor dismissal or at least three factors strongly favor dismissal.” Id. The Court

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reviews each factor below.

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A.

Factors One and Two: Expeditious Resolution of Litigation and
Management of The Court’s Docket

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The Court finds that the first two factors favor dismissal. First, “the public’s interest in

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expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191

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F.3d 983, 990 (9th Cir. 1999). Second, the trial court—not the plaintiff—should control

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the pace of the docket. See id. The Court finds that the delay caused by Plaintiff in this case

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is unreasonable and has caused an interference with the Court’s docket. Plaintiff has twice

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failed to appear when his appearance was necessary to move this case forward. It is clear

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that Plaintiff does not respect the Court’s time. Plaintiff is taking away time that could be

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devoted to other cases on the Court’s active docket.

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B.

Factor Three: Prejudice to Defendant

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“In determining whether a defendant has been prejudiced, we examine whether the

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plaintiff’s actions impair the defendant’s ability to go to trial or threaten to interfere with

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the rightful decision of the case.” Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir.

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1987) (internal citation omitted). The Court finds that the third factor also favors dismissal.

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The underlying event which predicated this case is Plaintiff’s injury at work. Only Plaintiff

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knows key information necessary to establish the timeline of events and other relevant
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information at issue in this case. Plaintiff now attempts to impede the resolution of the case

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by preventing Defendant from gathering such relevant information for trial. See

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Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Unnecessary delay inherently

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increases the risk that witnesses’ memories will fade and evidence will become stale.”)

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(internal citation omitted). The Court finds that Plaintiff’s repeated absence is unreasonable

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and prejudicial to Defendants’ ability to form a defense in this case.

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C.

Factor Four: The Availability of Less Drastic Matters

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A court has great discretion in reprimanding a party who unnecessarily delays

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discovery. See Fed. R. Civ. P. 37. When considering whether to dismiss a case for lack of

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prosecution, a court should consider the feasibility of alternative sanctions before

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ultimately dismissing the case. See Estrada v. Speno & Cohen, 244 F.3d 1050, 1057 (9th

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Cir. 2001). However, when a party engages in egregious behavior—such as the repeated

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failure to comply with a court’s order—then the explicit discussion of alternative sanctions

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is unnecessary. Id.

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Here, Plaintiff timely received notice of the scheduled deposition, but Plaintiff chose to

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wait until the day before the deposition to file a motion for protective order. (Docs. 53, 57)

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Additionally, Plaintiff did not file a motion to stay the deposition pending his motion for

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protective order. Although Plaintiff asserts that he wanted to wait for the Court’s ruling on

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his motion to appoint counsel, that reasoning does not justify his failure to appear at the

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deposition. See Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass’n,

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316 F.R.D. 327, 336-38 (D. Nev. 2016) (“The mere filing of a motion for protective order

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does not relieve a deponent of his duty to appear at a deposition; instead, that duty is

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relieved only by obtaining either a protective order or an order staying the deposition

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pending resolution of the motion for protective order.”).

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Subsequently, the Court found good cause to set a discovery dispute hearing and allow

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Plaintiff an opportunity to argue why sanctions were not an appropriate response for his

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failure to appear. To add insult to injury, Plaintiff failed to appear for that hearing.1 (Doc.

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70) The Court finds that Plaintiff’s behavior is egregious, and therefore, the fourth factor

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favors dismissal.

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Alternatively, even if the Court found that this factor weighed against dismissal, “it is

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not sufficient to outweigh the other four factors, which in this case support dismissal.” U.S.

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Postal Serv., 833 F.2d at 133 n.2.
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Factor Five: Judgment on the Merits

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Generally, the last factor weighs against dismissal. See Calloway, 651 Fed.Appx. at

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640. However, the Court finds that the public policy of this factor is hindered when a party

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attempts to prevent necessary discovery. Therefore, in this unique instance, the Court finds

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that the last factor weighs in favor of dismissal because Plaintiff is impeding meritorious

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evidence from being discovered and used in this case. In this way, judgment on the merits

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would be impossible. Accordingly,
IT IS ORDERED that the case shall be dismissed with prejudice. The Clerk’s

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Office shall terminate the case accordingly.
Dated this 27th day of November, 2019.

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Honorable Steven P. Logan
United States District Judge

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As a result of Plaintiff’s failure to appear at the deposition, the Court imposed
sanctions in the amount of $500. (Doc. 70)
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