Stevens v. Beard et al
Filing
92
FINDINGS and RECOMMENDATIONS Recommending to Grant Defendants' Motion for Terminating Sanctions 88 re 1 signed by Magistrate Judge Stanley A. Boone on 1/24/2025. Referred to Judge Thurston. Objections to F&R due within 14 days. (Deputy Clerk JPX)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LYRALISA LAVENA STEVENS,
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Plaintiff,
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No. 1:17-cv-01002-JLT-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING TO GRANT
DEFENDANTS’ MOTION FOR
TERMINATING SANCTIONS
v.
JEFFREY BEARD, et al.
(ECF No. 88)
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Defendants.
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Plaintiff is proceeding pro se and in forma pauperis in this action filed pursuant to 42
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U.S.C. § 1983.
Currently before the Court is Defendants’ motion for terminating sanctions, filed
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November 25, 2024.
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I.
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PROCEDURAL BACKGROUND
This action is proceeding against Defendants Jeffrey Beard, Christopher Podratz, Godwin
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Ugwueze, John Choy, Kim Cornish, Clarence Cryer, Felix Igbinosa, Anthony Enenmoh,
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Trachelle Hurtado, Renee Kanan, Jeffrey Carrick, Scott Kernan, J. Lewis, and R. Coffin for
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deliberate indifference to a serious medical need for failure to provide transgender surgery.
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Defendants filed an answer to the complaint on April 3, 2023. (ECF No. 64.)
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On October 18, 2023, an unsuccessful settlement conference was conducted. (ECF No.
76.)
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On October 19, 2023, the Court issued the discovery and scheduling order. (ECF No. 78.)
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On July 15, 2024, the Court granted Defendants’ motion to modify the scheduling order
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and extended the discovery and dispositive motions to August 18, 2024 and October 28, 2024,
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respectively. (ECF No. 82.)
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On August 19, 2024, Defendants filed a motion to compel Plaintiff’s participation at
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deposition and to extend the discovery and dispositive motion deadlines. (ECF No. 83.) Plaintiff
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did not file an opposition.
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On October 1, 2024, the Court granted Defendants’ motion to compel Plaintiff’s
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participation in his deposition and extended the discovery and dispositive motions deadlines.
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(ECF No. 84.)
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On October 7, 2024, Plaintiff filed a motion for the Court to take notice of Exhibits A-I to
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A-28, and objections to Defendants’ motion to compel Plaintiff to participate in deposition. (ECF
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Nos. 85, 86.)
On October 10, 2024, the Court overruled Plaintiff’s objections to taking his deposition.
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(ECF No. 87.)
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On November 25, 2024, Defendants filed the instant motion for terminating sanctions.
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(ECF No. 88.) Plaintiff has not filed an opposition and the time to do so has passed. Local Rule
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230(l).
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II.
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LEGAL STANDARD
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Federal Rule of Civil Procedure 16 allows the court, on motion or its own, to “issue any
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just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party ... fails to obey a
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scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1), (f)(1)(C). Federal Rule of Civil
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Procedure provides that if a party “fails to obey an order to provide or permit discovery, including
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an order under [Rule 37(a)], the court ... may issue further just orders[,]” including the sanction of
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dismissal. Fed. R. Civ. P. 37(b)(2)(A)(v); Fed. R. Civ. P. 37(d)(1)(A) (permitting court to order
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sanctions if a party fails to attend its own deposition). Under Federal Rules of Civil Procedure
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41(b), “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules] or a court order, a
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defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). The
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standards governing dismissal under Rules 41(b), 16(f), and 37(b)(2) are essentially the same.
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Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (holding that standards for Rules
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16(f) and Rule 37(b)(2) are “basically the same”); Price v. McGlathery, 792 F.2d 472, 474 (5th
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Cir. 1986) (stating that same criteria apply to dismissals under Rules 41(b) and 16(f)). “Dismissal
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is a harsh penalty and is to be imposed only in extreme circumstances.” Henderson v. Duncan,
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779 F.2d 1421, 1423 (9th Cir. 1986).
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A district court must weigh five factors in determining whether to dismiss a case for
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failure to comply with a court order: (1) the public’s interest in expeditious resolution of
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litigation, (2) the court’s need to manage its docket, (3) the risk of prejudice to the party seeking
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sanctions, (4) the public policy favoring disposition of cases on their merits, and (5) the
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availability of less drastic sanctions. Malone, 833 F.2d at 130. It is preferred but not required that
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a district court make explicit findings to show that it has considered these factors. Ferdik v.
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Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). These factors “are not a series of conditions
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precedent before the judge can do anything,” but a “way for a district judge to think about what to
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do.” Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). “The first two of
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these factors favor the imposition of sanctions in most cases, while the fourth cuts against a ...
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dismissal sanction. Thus[,] the key factors are prejudice and availability of lesser sanctions.”
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Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990); see also Adriana Int’l Corp. v. Thoeren,
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913 F.2d 1406, 1412 (9th Cir. 1990).
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III.
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DISCUSSION
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As background, Plaintiff Lyralisa Stevens is a transgender woman and former inmate with
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the California Department of Corrections and Rehabilitation (CDCR), who filed this action under
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42 U.S.C. § 1983 on July 38, 2017. (ECF No. 1.) Plaintiff contends that CDCR violated her rights
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under the Eighth Amendment by failing to timely coordinate and provide her “sexual3
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reassignment surgery” (also referred to as “gender-confirming surgery”) while she remained in
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custody. (ECF No. 1.)
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On May 3, 2024, defense counsel noticed Plaintiff’s deposition for June 3, 2024 at 10:00
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a.m. (ECF No. 83, Henkels Decl., ¶ 3.) The notice was served by over-night mail. (Id.) Defense
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counsel did not receive any communication from Plaintiff between May 3 and May 30. (Id.) On
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May 30, defense counsel wrote Plaintiff, reminding Plaintiff of her upcoming deposition, and
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advising that if the deposition needed to be rescheduled, to contact defense counsel. (Id. at ¶ 3,
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Ex. B.) Between May 30 and June 3, defense counsel did not receive any communications from
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Plaintiff. (Id. at ¶ 4.) Plaintiff did not appear at the deposition. (Id.) The following day, defense
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counsel wrote to Plaintiff again, requesting that Plaintiff contact him immediately to reschedule.
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(Id., Ex. C.)
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Plaintiff contacted defense counsel on June 5, 2024 via email. (ECF No. 83, Henkels
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Decl., ¶ 4.) The parties agreed to reschedule the deposition, but were unable identify a new time
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and agreed they would need to find a date after the close of discovery. On July 11, 2024,
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Defendants moved to extend all discovery deadlines to allow for Plaintiff’s deposition. (ECF No.
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81, Henkels Decl., ¶ 5.) The Court granted Defendants’ motion on July 15, 2024, and allowed the
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parties until August 19, 2024 to complete Plaintiff’s deposition. (ECF No. 82; Fed. R. Civ. P.
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6(a)(1).)
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The parties agreed to Tuesday, August 13, 2024, and that the deposition would be
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conducted via Zoom video-conferencing software. (Id.) Defendants served proper notice.
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(Henkels Decl. ¶ 6, Ex. C.) Defendants coordinated the deposition through the Veritext Legal
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Solutions, which uses Zoom video-conferencing software. (Id.)
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On August 13, 2024, however, Plaintiff claimed she could not connect to the deposition
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because “Veritext is heavily flawed” and that Defendants had promised that the deposition would
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proceed via Zoom. (Id. at ¶ 7.) Over electronic correspondence, Plaintiff “Object[ed] to the
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flawed manner of these repeated proceedings with the flawed Company Veritext, with probable
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cause to doubt the authenticity of this email.” (Id.) Defense counsel has never had similar
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problems with Veritext Legal Solutions previously. (Id.) The parties discussed the matter over
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the phone, and Defendants agreed to continue the deposition and to use a different legal services
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provider to accommodate Plaintiff. (Id. at ¶ 8.) The parties agreed to Thursday, August 15, 2024
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at 10:30 a.m. for Plaintiff’s deposition. (Id.) And Defendants noticed and scheduled the
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deposition using Trustpoint One Legal Services (TP One). (Id.)
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On August 15, 2024, Plaintiff appeared at her deposition, albeit 15 minutes, and when the
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deposition officer asked her to raise her right hand for the oath, she refused. (ECF No. 83,
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Henkels Decl. ¶ 10.) As reflected in the transcript, Plaintiff “refused to be first duly sworn,” and
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stated that it was her First Amendment right to do so. (Henkels Decl, Ex. E (Pl. Dep.), p. 4:1-23.)
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The deposition officer again asked Plaintiff to raise her right hand, and Plaintiff again refused.
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(Id. at 5:3-8.) After some discussion, Plaintiff refused to take an oath that she would tell the truth,
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and the deposition was suspended. (Id. at 5:16-6:22.)
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On August 19, 2024, Defendants filed a motion to compel Plaintiff’s participation at
deposition. (ECF No. 83.)
On October 1, 2024, the Court granted Defendants’ motion to compel Plaintiff’s
participate at deposition. (ECF No. 84.)
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On October 7, 2024, Plaintiff filed a motion for the Court to take notice of Exhibits A-I to
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A-28, and objections to Defendants’ motion to compel Plaintiff to participate in deposition. (ECF
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Nos. 85, 86.)
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On October 10, 2024, the Court overruled Plaintiff’s objections to taking his deposition,
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and reminded her “that she must participate in the taking of her deposition and the failure to do so
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may result in the imposition of sanctions, including dismissal of the action. Fed. R. Civ. P. 37.”
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(ECF No. 87 at 2.) The Court reminded Plaintiff that she voluntarily invoked the procedures of
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the Court when she filed her complaint, and that she thus “assumed the responsibility of
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providing through admission evidence the serious allegations of [the] complaint.” (Id. at 4, citing
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Tene v. City and County of San Francisco, No. C 00-03868 WHA, 2004 1465726 (N.D. Cal. May
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12, 2004.) Plaintiff was admonished her refusals to provide testimony prejudiced Defendants,
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and that her refusal would not be tolerated. (Id.) The Court therefore directed Plaintiff to
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participate in her deposition, and to attend the deposition in person. (Id. at 5-6.) The Court also
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directed Defendants to reschedule and re-notice Plaintiff’s deposition at the nearest Office of the
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Attorney General for Plaintiff to appear in-person. (Id.) The Court extended its deadlines once
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more, and provided Defendants until November 1, 2024 to complete the deposition. (Id.)
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Defendants submit that the closest office for the California Attorney General is located in
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San Diego, California. (Henkels Decl. ¶ 17, ECF No. 88.) Defendants re-scheduled and re-noticed
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Plaintiff’s deposition for Wednesday, October 30, 2024 at the Office of the California Attorney
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General in San Diego, California. (Id.) Counsel for Defendants lives in Oakland, California, but
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thought it best to attend the deposition in person as well. (Id. at ¶ 18.) He thus purchased and
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coordinated travel accommodations. (Id.)
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Plaintiff confirmed she received proper notice of the deposition. (Henkels Decl. ¶¶ 18-20,
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ECF No. 88.) Counsel emailed her on Monday, October 28, 2024, to remind Plaintiff that the
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deposition was to occur on October 30, 2024 in San Diego, California, and he would be available
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should she have any questions or concerns. (Id.) Plaintiff responded just eight minutes later. (Id.)
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In her response, Plaintiff confirmed that she had received the Notice of Deposition, but that she
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thought the Court Order to be without merit: “I received your notice,” she wrote, “and shall reply
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to the court’s erroneous order.” (Id. at ¶ 20.) Plaintiff, however, did not identify how she intended
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to reply, or on what basis, and has not filed anything with the Court since. (Id. at 20-21.)
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Plaintiff did not inform Defendants she would not appear at her deposition, and the Court
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had not relieved Plaintiff of her obligations. (Henkels Decl, ¶ 21, ECF No. 88.) Defendants thus
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proceeded with the deposition. (Id.) Both defense counsel and the court reporter arrived at the
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conference room early, but they did not hear anything from Plaintiff. (Id.)
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Plaintiff did not appear at her deposition on October 30, 2024. (Id. at ¶ 22.)
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The Court now moves to weighing of the following five factors relevant to whether this
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action should be dismissed: “(1) the public’s interest in the expeditious resolution of litigation; (2)
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the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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sanctions.” Henderson, 779 F.2d at 1423.
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A.
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Defendants argue that the first and second factors weigh in favor of dismissal for the
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The First and Second Factors Weigh in Favor of Dismissal
following reasons because Plaintiff violated a court order.
The Court agrees with Defendants. Plaintiff has failed to abide by the Court’s discovery
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orders and failed to participate in two properly noticed depositions. Plaintiff’s refusal to
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participation in deposition delayed the litigation, as the Court modified the discovery and
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scheduling order to extend the deadline to take Plaintiff’s deposition. (ECF No. 82.) In addition,
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Plaintiff’s failure to connect to her deposition on August 13, 2024, and her refusal to participate
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in her August 15, 2024 deposition, required the Court to issue an extensive order compelling
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Plaintiff’s participation and extending discovery deadlines once more. (ECF Nos. 82, 83.)
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Plaintiff filed objections, and the Court affirmed its order on October 10, 2024. (ECF No. 87.)
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But even after the Court issued two orders, and after having received proper notice of her
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deposition, Plaintiff simply disregarded the Court’s orders. It is Plaintiff’s responsibility to
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ensure that this case proceeds in an efficient and timely manner. Morris v. Morgan Stanley &
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Co., 942 F.2d 648, 652 (9th Cir. 1991). However, Plaintiff failed to appear for her October 30,
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2024 deposition, yet again impending the process of this case.
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B.
The Third Factor Weighs in Favor of Dismissal
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The Court is to next weigh the risk of prejudice to the Defendants. Henderson, 779 F.2d at
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1423. “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 the
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rightful decision of the case.” Malone, 833 F.2d at 131 (finding failure to comply with pretrial
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order more than 30 days before trial date was “no doubt...[a] last-minute notification of her
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decision not to comply with the pretrial order [and] had a prejudicial effect on the Government.”).
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The Ninth Circuit has stated “where a court order is violated, factors 1 and 2 support sanctions
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and 4 cuts against case-dispositive sanctions, so 3 and 5, prejudice and availability of less drastic
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sanctions, are decisive.” Valley Engineers Inc., 158 F.3d at 1057.
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Defendants argue they have been prejudiced given Plaintiff ‘s refusal to attend and
cooperate with her deposition and answer questions regarding her claims. The Court agrees.
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Defendants have been prejudiced because they cannot defend against Plaintiff’s lawsuit
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without the ability to learn additional facts regarding Plaintiff’s claims, investigate Plaintiff’s
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claimed injuries, and discover the facts which may support potential defenses. (ECF No. 85,
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Burns Decl. ¶ 5); see also Kirkelie v. Thissell, No. 115CV00735DADSABPC, 2018 WL
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1272227, at *2 (E.D. Cal. Mar. 9, 2018) (“Defendants have suffered prejudice due to Plaintiff's
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failure to respond to discovery requests [as] [t]he failure to obtain discovery information
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significantly impairs the Defendants’ ability to go to trial and to determine whether Plaintiff has
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adequately exhausted administrative remedies and to make rightful and informed decisions as to
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whether this affirmative defense should be explored [and the] failure to respond to discovery has
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created an unreasonable delay, which in turns creates a presumption of prejudice [while] the
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additional efforts to obtain discovery responses required Defendants to incur expenses that would
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not otherwise have been incurred had Plaintiff responsibility cooperated.”); Adriana Intern. Corp.
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v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990) (finding the repeated failure to appear at
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scheduled depositions compounded by refusal to comply with court-ordered production of
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documents constituted interference with the rightful decision of the case, and therefore prejudice
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was established). Defendants have also been “prejudiced by the cost of repeatedly preparing for
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and attempting to depose Plaintiff, and for being forced to file several requests and motions
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before the court. (See, e.g., Henkels Decl., ¶¶ 2-23.) In addition to attorney fees, Defendant
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incurred $860.85 in court-reporter fees for the June 3, 3034 deposition. (Id. at ¶ 25.) They
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incurred $725.00 for the August 13, 2024 deposition. (Id.) And Defendants incurred $903.75 in
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court-reporter costs, $60.50 for a rental car, and $286.48 in airfare for the October 30, 2024
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deposition. (Id.) In total, and without calculating attorney fees, Defendants incurred $3,701.58 as
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a result of Plaintiff’s continued refusal to participate in her deposition. (Id.)” (ECF No. 88 at14-
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15.) Lastly, Plaintiff’s conduct continues to cause further delay in this action, which is more than
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seven years old, and additional delay can lead to employee turnover, memory loss, and other
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similar losses of evidence causing prejudice to Defendants. Accordingly, this factor weighs in
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favor of dismissal.
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C.
The Fourth Factor Weighs in Favor of Dismissal
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The Court is to next weigh the public policy favoring disposition of cases on their merits.
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Henderson, 779 F.2d at 1423. As Defendants acknowledge, the public policy favoring merit-
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based dismissals essentially always weighs against terminating sanctions. See, e.g., Pagtalunan v.
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Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors disposition of cases on the
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merits. Thus, this factor weighs against dismissal.”). However, this factor is not dispositive. See,
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e.g., In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (“Although there is indeed a policy favoring
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disposition on the merits, it is the responsibility of the moving party to move towards that
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disposition at a reasonable pace, and to refrain from dilatory and evasive tactics...[plaintiff]
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certainly has not fulfilled his responsibility [and] [t]hus, the public policy favoring the resolution
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of disputes on their merits does not outweigh [the] four-year delay or the prejudice suffered.”)
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(internal quotation marks and citations omitted).
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Plaintiff’s failure to comply with the Court’s order to appear for and submit to an oral
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deposition stalls the resolution of the case on the merits, which weighs against Plaintiff being able
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to avail herself of the benefits of the public policy. Even if this factor weighs against dismissal,
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as explained herein, on balance, the totality of the circumstances and the other factors weigh in
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favor of dismissal of the action. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460
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F.3d 1217, 1228 (9th Cir. 2006) (“We have often said that the public policy favoring disposition
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of cases on their merits strongly counsels against dismissal...[but] [a]t the same time, a case that is
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stalled or unreasonably delayed by a party's failure to comply with deadlines and discovery
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obligations cannot move forward toward resolution on the merits [and] [t]hus, we have also
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recognized that this factor ‘lends little support’ to a party whose responsibility it is to move a case
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toward disposition on the merits but whose conduct impedes progress in that direction.”) (internal
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citations omitted).
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D.
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The Court is to next weigh the availability of less drastic sanctions. Henderson, 779 F.2d
The Fifth Factor Weighs in Favor of Dismissal
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at 1423. “The district court need not exhaust every sanction short of dismissal before finally
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dismissing a case, but must explore possible and meaningful alternatives.” Id. at 1424; but see
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Malone, 833 F.2d at 132 (“We have indicated a preference for explicit discussion by the district
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court of the feasibility of alternatives when ordering dismissal...However, we have never held that
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explicit discussion of alternatives is necessary for an order of dismissal to be upheld [and] [u]nder
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the egregious circumstances present here, where the plaintiff has purposefully and defiantly
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violated a court order, it is unnecessary (although still helpful) for a district court to discuss why
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alternatives to dismissal are infeasible.”). “Moreover, explicit discussion of alternatives is
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unnecessary if the district court actually tries alternatives before employing the ultimate sanction
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of dismissal.” Malone, 833 F.2d at 132. “Finally, the case law suggests that warning a plaintiff
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that failure to obey a court order will result in dismissal can suffice to meet the ‘consideration of
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alternatives’ requirement.” Id. (collecting cases).
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Here, Plaintiff was given amble accommodations and ability to comply the taking of her
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deposition. After Plaintiff failed to appear at the first noticed deposition, Defendants
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accommodated Plaintiff’s schedule for a new date. (Henkels Decl. ¶¶ 7-9.) However, Plaintiff
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then demanded that Defendants may only ask questions without any oath or affirmation that she
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would tell the truth. (Id.) When the Court overruled Plaintiff’s objection to the order to appear at
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her deposition in person, the Court reminded Plaintiff that of her obligation to appear and
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participate in the taking of her deposition, and “the failure to do so may result in the imposition of
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sanctions, including dismissal of the action.” (ECF No. 87 at 3.)
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Nonetheless, despite the efforts to accommodate Plaintiff and two explicit court orders,
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Plaintiff yet again failed to comply with her obligations to participate in her deposition. Instead,
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Plaintiff disregarded her obligation and told Defendants she received notice, “and shall reply to
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the court’s erroneous order.” (Henkels Decl. ¶¶ 20-22.) Thereafter, Plaintiff did not attend her
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deposition and did not contact Defendants about her decision. (Id.) She also did not file a reply to
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the Court’s order, as she claimed she would. (Id.) Plaintiff is also proceeding in forma pauperis,
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and thus monetary sanctions are not a viable alternative. See Jenkins v. Biter, 13-cv-02724 VBF
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(RZ), 2014 WL 11742143, *2 (C.D. Cal. 2014) (concluding same and compiling cases reaching
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similar conclusion). Additionally, the Court finds other alternatives to not be a feasible remedy at
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this point. As evidenced by the record in this case, Plaintiff’s inaction and failure to abide by her
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discovery obligations demonstrate she has abandoned this litigation and it is reasonable to dismiss
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the action, in lieu of lesser sanctions. Accordingly, this factor weighs in favor of dismissal.
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E.
The Factors Collectively Weigh in Favor of Dismissal
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In sum, the five factors favor dismissal in this case. Plaintiff has failed to appear for her
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depositions and has ignored the Court’s prior orders to submit for a deposition despite the
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warning of potential dismissal for failure to comply, and lesser sanctions are not available.
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Accordingly, dismissal, with prejudice, is justified. See Pagtalunan, 291 F.3d at 643 (affirming
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district court's dismissal where three factors weighed in favor of dismissal, and two factors
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weighed against dismissal); Scott v. Belmares, No. CV99-12458GAF(AJW), 2008 WL 2596764,
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at *7 (C.D. Cal. Apr. 30, 2008) (“The five-factor test is a disjunctive balancing test, so not all five
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factors must support dismissal...[f]our of the five factors strongly support dismissal in this
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case...the record supports the conclusion that plaintiff's noncompliance with court rules and
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orders was willful and unjustified [and thus] [t]he terminating sanction of dismissal with
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prejudice is warranted under Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure and
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this court’s Local Rules.”), report and recommendation adopted, No. CV99-12458GAF(AJW),
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2008 WL 2596659 (C.D. Cal. June 27, 2008), aff’d, 328 F. App’x 538 (9th Cir. 2009).
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IV.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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Defendants’ motion for terminating sanctions be GRANTED; and
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The instant action be dismissed, with prejudice.
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These Findings and Recommendations will be submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendations, the parties may file
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written objections with the Court, limited to 15 pages in length, including exhibits. The
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” The parties are advised that failure to file objections within the specified
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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39
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(9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
January 24, 2025
STANLEY A. BOONE
United States Magistrate Judge
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