Hatton et al v. Bank of America N.A et al
Filing
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ORDER denying 110 Motion to continue Trial and granting 107 Motion for Terminating Sanctions signed by Magistrate Judge Erica P. Grosjean on 11/15/2017. CASE CLOSED. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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P. ORB HATTON and DIANE HATTON,
Plaintiffs,
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v.
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BSI FINANCIAL SERVICES,
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Case No. 1:15-cv-00187-EPG
ORDER DENYING PLAINTIFFS’
MOTION TO CONTINUE TRIAL, AND
GRANTING DEFENDANT’S MOTION
FOR TERMINATING SANCTIONS
(ECF Nos. 107, 110)
Defendant.
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This case has been pending for more than two years. Plaintiffs’ case against one
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defendant has already been resolved, and one defendant, BSI Financial Services (“BSI”), remains.
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After multiple extensions of the schedule, the current trial date is March 27, 2018. The case has
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hit a standstill, however, as Plaintiffs are unwilling to sit for their depositions. Plaintiffs have
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requested further extensions of the schedule, (ECF No. 110), whereas BSI has requested
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terminating sanctions, pursuant to Fed. R. Civ. P. 41(b), based on Plaintiffs’ failure to appear for
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their depositions. (ECF No. 107).
Because Plaintiffs have failed to comply with court orders and have failed to show good
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cause to further modify the scheduling order, the Court DENIES Plaintiffs’ motion to continue
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the date of trial, and GRANTS Defendant’s motion for terminating sanctions.
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I.
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Plaintiffs P. Orb and Diane Hatton commenced this action on February 4, 2015 against
BACKGROUND
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Bank of America, N.A. and BSI. (ECF No. 1.) On August 18, 2015, the Court issued a scheduling
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order, initially setting a non-expert discovery cut-off date of March 11, 2016 and a trial date of
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January 20, 2017. (ECF No. 55.)
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Since that time, the Court has modified the scheduling order numerous times. On
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November 15, 2016, based on the stipulation of the parties, the Court modified the scheduling
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order by setting a non-expert discovery cut-off date of January 6, 2017 and a trial date of
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September 26, 2017. (ECF No. 81.)
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Plaintiffs and Bank of America, N.A. reached a settlement on February 26, 2016. (ECF
No. 72)
On March 20, 2017, the remaining parties filed a joint motion to further modify the
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scheduling order to extend all dates by six months. (ECF No. 96.) The parties explained that P.
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Orb Hatton had been unable to sit for his deposition because, “As a result of the chemotherapy,
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[Orb Hatton] has a condition named ‘chemo brain’ which is described by the Mayo Institute as
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‘chemotherapy-related cognitive impairment or cognitive dysfunction.’ ‘Chemo brain’ sometimes
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called ‘chemo fog’ describes thinking and memory problems that can occur after cancer
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treatment.” (ECF No. 96.) Moreover, Diane Hatton filed Chapter 13 Bankruptcy on October 17,
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2016, and had not obtained leave of the bankruptcy trustee to move forward with litigation. Id.
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Also, Plaintiffs’ attorney had withdrawn as counsel. Id. at 8.
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On March 23, 2017, the Court modified the scheduling order, setting a non-expert
discovery cut-off of June 6, 2017 and a trial date of March 27, 2018. (ECF No. 98.)
On June 5, 2017, Plaintiffs filed a motion requesting a “4 month postponement of case.”
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(ECF No. 99.) Plaintiffs explained that “My oncologist, Dr. Lan, has informed me and BSI’s
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Attorneys, that due to my chemotherapy treatments, my mental capacities are compromised. I am
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recovering, however not completely.” Id. Plaintiffs also stated that they were awaiting a response
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to an offer of settlement. Id. Plaintiffs did not attach any medical information or note from a
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medical professional in their request for a postponement.
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BSI responded to Plaintiffs’ motion, (ECF No. 101), explaining that both Plaintiffs had
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failed to attend their noticed depositions set for June 5, 2017. Plaintiff Orb Hatton had informed
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defense counsel that “he is currently recovering from his treatments and still has trouble
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remembering clearly.” (ECF No. 101, at 2.) No reason was given for the failure of Plaintiff
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Diane Hatton to attend her deposition.
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On June 15, 2017, the Court again modified the scheduling order, changing the non-expert
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discovery cut-off date to September 1, 2017. (ECF No. 102.) In the order extending the schedule,
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the Court stated “The Court is mindful, however, that this case has been pending for nearly two
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and a half years at this point and has already received lengthy extensions that are not
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commensurate with the complexity of the case. Thus, while Plaintiffs’ motion is GRANTED in
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part, the Court will not grant the parties the entirety of the requested extension, nor will it move
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the pretrial conference or trial dates. The parties are also advised that, barring extraordinary
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circumstances, no further extensions of time will be granted.” (ECF No. 102.)
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On September 6, 2017, a Telephonic Informal Discovery Dispute Conference was held
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concerning Plaintiffs’ failure to appear for deposition. (ECF No. 104.) Defendant stated that it
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served seventh amended notices of deposition on Plaintiffs, setting depositions for August 8,
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2017. Plaintiffs requested an extension, and Defendant agreed to continue the depositions to
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August 22, 2017. Plaintiffs then requested a further continuance. BSI declined to offer any further
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continuances.
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Mr. Hatton stated that he was no longer undergoing chemotherapy, but was concerned that
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he was experiencing memory issues as a residual effect of the treatment. Mr. Hatton further stated
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that he intends to sit for deposition, but was awaiting clearance from his physician, who he would
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see on September 12, 2017.
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The Court told the parties that it would not move the trial date. But, the Court extended
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the non-expert discovery deadline to October 11, 2017, and directed Plaintiffs to appear for
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deposition before expiration of the non-expert discovery period. Id. The parties set a meet and
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confer for September 14, 2017. The Court directed the Plaintiffs to confer regarding a date for
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their deposition. The Court stated that Plaintiffs could state on the record any issues with their
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memory that should be noted, but that the depositions must go forward. The Court explained that
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there would be consequences for Plaintiff’s failure to appear for deposition. The Court also
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warned that if Plaintiffs did not appear for depositions, dismissal of this action may be warranted.
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On September 26, 2017, the Court granted BSI permission to file a motion for relief, and
directed BSI to proceed according to Local Rule 251(e). (ECF No. 106.)
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Now before the Court are the parties’ respective motions. (ECF Nos. 107, 110.)
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II.
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DISCUSSION
A. Motion for Continuance of Trial
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Plaintiffs seek to once again modify the scheduling order to continue the trial, now set for
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March 27, 2018, to May 2018. (ECF No. 110.) Plaintiffs state that Mr. Hatton suffered a detached
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retina as a result of a fall on September 25, 2017, and scheduled a required surgery for October
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16, 2017. Mr. Hatton will require a few weeks recovery after surgery. Plaintiffs further state that
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BSI has made an offer of settlement which Plaintiffs are considering.
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Notably, Plaintiffs did not attach any exhibits in support of their motion. Plaintiffs did not
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include any note from a doctor or other medical professional. Moreover, Plaintiffs have not
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offered any date for their depositions. Plaintiffs also have not provided any excuse for Diane
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Hatton’s failure to attend her deposition.
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BSI opposes Plaintiffs’ motion. (ECF No. 112.) BSI states that it would be prejudiced by a
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continuance. BSI argues that there is a risk witnesses’ memories will fade and evidence will
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become stale as this action arises from discussions between Mr. Hatton and a BSI employee,
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Chris Davis, in December 2014. BSI further argues that it has been unable to defend this action
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due to Plaintiffs’ inability to sit for deposition. Plaintiffs have been given all reasonable
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opportunity to prosecute this action, but the action has been indefinitely stalled. Mr. Hatton has
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not provided any details of the extent, duration or the lasting impact of his mental impairment or
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his ability to provide testimony. Defendant also states that no settlement negotiations are pending.
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“A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly
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disregarded [ ] without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th
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Cir. 1992)(citation and quotation omitted). Rule 16(b)(4) of the Federal Rules of Civil Procedure
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allows the Court to modify a scheduling order for good cause. The “good cause” standard
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“primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at
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609. “The district court may modify the pretrial schedule ‘if it cannot reasonably be met despite
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the diligence of the party seeking the extension.’” Id. (citing Fed. R. Civ. P. 16 advisory
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committee’s notes (1983 amendment)). Although “the focus of the inquiry is upon the moving
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party’s reasons for seeking modification,” a court may make its determination by noting the
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prejudice to other parties. Id.
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The Court finds that Plaintiffs have failed to show good cause to further modify the
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scheduling order. The Court has twice continued the date for trial and has modified the
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scheduling order four times. In its last extension, it warned all parties that it would not extend the
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schedule absent extraordinary circumstances. (ECF No. 102.) Although the Court has shown
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willingness to accommodate Mr. Hatton’s medical needs, it is unwilling to do so again. The
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Court has repeatedly extended the schedule based on allegations of side effects of medical
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procedures and assurances that additional time would allow Plaintiffs to comply with their
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obligations. Yet, Plaintiffs have not participated in their depositions despite these extensions to
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the schedule.
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Additionally, Plaintiffs’ current request for yet another postponement is not supported by
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any evidence from any medical professional. The evidence available to the Court reveals that Mr.
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Hatton was treated for blurred vision due to corneal scratches on September 18, 2017 and visited
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an Ophthalmologist on September 21, 2017. (ECF No. 107-1, at 6-9.) That information alone
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does not support a postponement of the schedule.
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Moreover, the trial is set from March 27, 2018, more than four months away. As Mr.
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Hatton requires only a few weeks to recover from the October 16, 2017 procedure, the Court
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finds that the trial date in this action could reasonably be met despite Mr. Hatton’s medical
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condition. Accordingly, Plaintiffs’ motion to continue the trial in this action to May 2018 is
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denied.
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B. Motion for Terminating Sanctions
i. Legal Standard
Federal Rule of Civil Procedure 37(d) provides that the court may, on motion, order
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sanctions if a party fails, after being served with proper notice, to appear for his/her deposition.
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The allowable sanctions include, among others, “dismissing the action or proceeding in whole or
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in part.” Fed. R. Civ. P. 37(b)(2)(A)(v), 37(d)(3). Pursuant to Federal Rule of Civil Procedure
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41(b), a court may dismiss a complaint for failure to prosecute or to comply with a court order.
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The test for Rule 37(b) and 41(b) dismissals is nearly identical. The Court must consider
five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to
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manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy
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favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.”
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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). This multi-factor test is “not
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mechanical,” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th
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Cir. 2007), and the court “need not make explicit findings regarding each of these factors,” Leon
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v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). Rather, the test “provides the district court
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with a way to think about what to do, not a set of conditions precedent for sanctions or a script
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that the district court must follow.” Conn. Gen. Life Ins. Co., 482 F.3d at 1096.
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ii. Analysis
The first and second factors militate in favor of granting dismissal. This action has been
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pending for almost three years. The Court has twice changed the date set for trial and has
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modified the discovery schedule four times. The Court has warned that no further extensions will
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be granted. Still, Plaintiffs have refused to participate in their depositions, or offer concrete dates
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to do so. On the contrary, the Court has repeatedly extended the schedule to accommodate
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Plaintiffs’ requests to no avail. Thus, the public’s interest and the court’s need to manage its
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docket weigh in favor of the dispositive sanction.
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The third factor requires a showing that Plaintiffs’ actions in this case have “impaired [the
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defendants’] ability to proceed to trial or threatened to interfere with the rightful decision of the
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case.” United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th
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Cir.1988). This factor also weighs in favor of dismissal. Non-expert discovery has now ended.
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Dispositive motions were due on October 27, 2017. The pretrial conference is set for February 1,
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2018, and trial is set for March 27, 2018. BSI first noticed Plaintiff’s depositions for March 28,
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2016. A year and a half later, BSI has been completely unable to depose both P. Orb Hatton and
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Diane Hatton. BSI has been unable to prepare and file a dispositive motion and has been unable
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to prepare for trial. Thus, Defendant’s ability to proceed to trial has been impaired.
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“The fourth factor—that public policy favors decisions on the merits—usually weighs
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against dismissal.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994), as amended (July
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25, 1994). The weight it brings to Plaintiff’s side of the ledger is minimal, however. The fourth
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factor “lends little support to a party whose responsibility it is to move a case toward disposition
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on the merits but whose conduct impedes progress in that direction.” In re Phenylpropanolamine
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(PPA) Prods. Liability Litig., 460 F.3d 1217, 1228 (9th Cir. 2006). Plaintiffs’ failure to appear for
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deposition has precluded BSI from engaging in a vital portion of the discovery process, and has
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impeded BSI’s ability to defend this action. Thus, the Court gives this factor little weight. Hyde
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& Drath, 24 F.3d at 1167.
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The fifth factor requires the Court to consider alternate, less severe, sanctions before
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ordering dismissal. Factor 5 involves consideration of three subparts: “whether the court
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explicitly discussed alternative sanctions, whether it tried them, and whether it warned the
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recalcitrant party about the possibility of dismissal.” Valley Engineers Inc. v. Elec. Eng'g Co., 158
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F.3d 1051, 1057 (9th Cir. 1998) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir.
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1987)). However, “explicit discussion of alternatives is unnecessary if the district court actually
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tries alternatives before employing the ultimate sanction of dismissal.” Malone, 833 F.2d at 132.
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Furthermore, an express warning regarding the possibility of dismissal is not a prerequisite to a
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Rule 41(b) dismissal when dismissal follows a noticed motion under Rule 41(b). Moneymaker v.
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CoBen (In re Eisen), 31 F.3d 1447, 1455 (9th Cir.1994).
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At the Informal Discovery Dispute Conference on September 6, 2017, the Court extended
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the non-expert discovery cut-off deadline, and warned Plaintiffs that failure to appear for their
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deposition could result in dismissal of this action. (ECF No. 104.) The Court allowed Plaintiffs’
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another opportunity to appear for a deposition and directed the parties to meet and confer
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regarding an acceptable date. Defendant states that after a meet and confer on September 14,
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2017, Plaintiffs agreed to appear for their depositions on September 21, 2017. (ECF No. 107, at
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6.) The next day, Plaintiffs stated that the date conflicted with Mr. Hatton’s medical appointment,
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but Plaintiffs agreed to appear for depositions on September 27 and 28, respectively. On
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September 22, 2017, Defendant was informed that the depositions could not go forward because
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Mr. Hatton had suffered a retinal detachment requiring immediate surgery. On September 25,
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2017, Plaintiffs provided BSI with an emergency department summary indicating that Mr. Hatton
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had been treated for blurred vision as a result of corneal scratches on September 18, 2017.
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Plaintiffs state that on September 25, 2017, Mr. Hatton suffered a detached retina in his
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left eye as a result of a fall. (ECF No. 110, at 2.) The condition was initially misdiagnosed as a
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corneal scratch. He was scheduled for surgery on October 16, 2017. He was physically
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incapacitated for five days, and requires an extended recovery period. He is experiencing 24 hour
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debilitating headaches a result of stitches in his eye. Plaintiffs state that, barring any other medical
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setbacks, they intend to prosecute this action to the best of their ability.
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Given the repeated requests for postponement, as well as Diane Hatton’s failure to attend
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her deposition without any justification, the Court has no reason to believe that less drastic
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sanctions would cause Plaintiffs to diligently prosecute this action. Plaintiffs have been given
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numerous extensions and warnings. Still, Plaintiffs have frustrated the discovery process for over
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a year and a half by failing to appear for deposition, and have continuously failed to comply with
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the Court’s scheduling orders.
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Plaintiffs argue in their motion for continuance that BSI has failed to respond to their
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March 2016 offer of settlement and has instead offered a settlement that exceeds value of the
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property at issue in this case. But, Defendant is not obligated to accept Plaintiffs’ offer of
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settlement. Plaintiffs also argue that Defendant has arbitrarily set deposition dates conflicting
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with Plaintiffs’ medical appointments. But, Defendant may set the time and place of the
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deposition. Fed. R. Civ. P. 30(b)(1). Moreover, the record shows that some of the many dates
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where Plaintiffs failed to appear were selected by Plaintiffs themselves, and in any event
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Plaintiffs are not proposing alternate firm dates now.
BSI has shown a willingness to accommodate Mr. Hatton in light of his medical
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condition. (ECF No. 96, 99.) Plaintiffs’ actions, however, have displayed an unwillingness to
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diligently prosecute this action in compliance with the rules, procedures, and orders of this Court.
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See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987) (“Pro se litigants must follow the same rules
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of procedure that govern other litigants.”). Thus, the fifth factor also weighs in favor of issuing
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the terminating sanction.
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Four of the five factors strongly favor dismissal of this action. Accordingly, Plaintiffs'
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action is dismissed with prejudice. See Hernandez v. City of El Monte,138 F.3d 393, 399 (9th
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Cir.1998) (finding dismissal is proper “where at least four factors support dismissal or where at
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least three factors ‘strongly’ support dismissal”).
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III.
CONCLUSION
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Based on the foregoing, IT IS ORDERED that:
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1. Plaintiff’s motion for continuance, (ECF No. 110), is DENIED;
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2. Defendant’s motion for terminating sanctions, (ECF No. 107), is
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GRANTED; and
3. Plaintiffs’ claims are DISMISSED with prejudice. The Clerk of the Court
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is DIRECTED to close this case.
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IT IS SO ORDERED.
Dated:
November 15, 2017
/s/
UNITED STATES MAGISTRATE JUDGE
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