Lucero v. Pennella et al

Filing 59

FINDINGS and RECOMMENDATIONS Recommending Granting Defendants' Motions for Terminating Sanctions, signed by Magistrate Judge Stanley A. Boone on 11/19/2020. Objections to F&R due within FOURTEEN DAYS. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MANUEL ROBERT LUCERO,

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Case No. 1:18-cv-01448-NONE-SAB

Plaintiff,

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FINDINGS AND RECOMMENDATIONS
RECOMMENDING GRANTING
DEFENDANTS’ MOTION FOR
TERMINATING SANCTIONS

v.

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ANTHONY ROBERT PENNELLA, et al.,

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Defendants.

(ECF Nos. 56, 57, 58)
OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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I.

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INTRODUCTION
Manuel Robert Lucero (“Plaintiff”) is appearing pro se and in forma pauperis in this civil

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20 rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s complaint alleges that after transferring
21 from Massachusetts to California to serve his post-conviction supervised release, he was
22 improperly placed on parole rather than probation as ordered by the sentencing judge in
23 Massachusetts, and that special conditions of parole were improperly applied to Plaintiff.
Currently before the Court is Defendants’ motion to dismiss Plaintiff’s claims due to

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25 Plaintiff’s failure to participate in discovery and failure to comply with the Court’s order
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26 compelling Plaintiff to do so. (ECF Nos. 56, 57.) The Court held a hearing on the motion on

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While Defendants’ moving papers only refer to Defendants Hoffman (erroneously sued as “Goffman”) and
Rodriguez as the moving parties, Defendant Anthony Pennella filed a notice of joinder to the motion, and joins in
the motion to compel the deposition, or alternatively exclude Plaintiff’s testimony. (ECF Nos. 56, 57.) The Court’s
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1 November 18, 2020, and Plaintiff failed to make an appearance. (ECF No. 58.) Plaintiff did not
2 file any response to the motion prior to the hearing, has not attempted to contact the Court, and
3 has failed to file a change of address with the Court. For the reasons discussed herein, the
4 undersigned recommends granting Defendants’ motion for terminating sanctions.
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II.

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LEGAL STANDARD

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Rule 37 of the Federal Rules of Civil Procedure provides that if a party “fails to obey an

8 order to provide or permit discovery . . . the court where the action is pending may issue further
9 just orders,” including: “(v) dismissing the action or proceeding in whole or in part.” Fed. R.
10 Civ. P. 37; see also Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983) (Rule
11 37 “authorizes the district court, in its discretion, to impose a wide range of sanctions when a
12 party fails to comply with the rules of discovery or with court orders enforcing those rules.”).
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“The standards governing dismissal for failure to obey court orders are the same under

14 Fed. R. Civ. P. 37(b)(2)(C) or 41(b).” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385,
15 n.1 (9th Cir. 1988); see also Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply
16 with these rules or a court order, a defendant may move to dismiss the action or any claim
17 against it.”); L.R. 110 (“Failure of counsel or of a party to comply with these Rules or with any
18 order of the Court may be grounds for imposition by the Court of any and all sanctions
19 authorized by statute or Rule or within the inherent power of the Court.”); but see Sanchez v.
20 Rodriguez, 298 F.R.D. 460, 463 (C.D. Cal. 2014) (“[W]here a party’s noncompliance with a
21 discovery order is the asserted basis for dismissal as a sanction, the court must employ the
22 discovery-specific Rule 37 rather than relying on Rule 41(b).”).
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The Ninth Circuit has identified five factors that a court must consider before imposing
reference herein to “Defendants” shall reference the three remaining Defendants, Hoffman, Rodriguez, and Pennella.
The Court notes that the original deposition notice that noticed the deposition for June 16, 2020, did in fact specify
that all three Defendants, Hoffman, Rodriguez, and Pennella, were noticing the deposition. (ECF No. 50-1 at 8.)
The court reporter’s affidavit of non-appearance dated June 16, 2020, also confirms that counsel present at the
deposition appeared in the capacity of counsel for the three Defendants. (ECF No. 50-1 at 16-17.) However, the
amended notice of deposition noticing the deposition for October 7, 2020, only refers to Defendants Hoffman and
Rodriguez. (ECF No. 56 at 11.) The affidavit of nonappearance dated October 7, 2020, does not specifically
reference any Defendant. (ECF No. 56 at 15.)

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1 the sanction of dismissal: “(1) the public’s interest in the expeditious resolution of litigation; (2)
2 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
3 policy favoring disposition of cases on their merits; and (5) the availability of less drastic
4 sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Toth, 862 F.2d at 1385.
5 The Ninth Circuit has stated that when considering “case-dispositive sanctions, the most critical
6 factor is not merely delay or docket management concerns, but truth . . . [and] regarding risk of
7 prejudice and of less drastic sanctions . . . whether the discovery violations ‘threaten to interfere
8 with the rightful decision of the case.’ ” Conn. Gen. Life Ins. Co. v. New Images of Beverly
9 Hills, 482 F.3d 1091, 1097 (9th Cir. 2007) (quoting Valley Eng’rs v. Electric Eng’g Co., 158
10 F.3d 1051, 1057 (9th Cir.1998). “A terminating sanction, whether default judgment against a
11 defendant or dismissal of a plaintiff's action, is very severe,” and “[o]nly willfulness, bad faith,
12 and fault justify terminating sanctions.” Conn. Gen. Life Ins., 482 F.3d at 1096.
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III.

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DISCUSSION

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Defendants move the Court pursuant to Federal Rule of Civil Procedure 37 to dismiss

16 Plaintiff’s claims, arguing Plaintiff has refused to participate in discovery and has failed to
17 comply with the Court’s order compelling such discovery. (Defs.’ Mot. Terminating Sanctions
18 & Mem. P. & A. (“Mot.”) 1, ECF No. 56.) Specifically, on July 20, 2020, in response to
19 Defendants’ motion to compel Plaintiff’s attendance at a deposition, the Court ordered Plaintiff
20 to participate in Defendants’ noticed deposition. (ECF No. 50, 55.) On September 4, 2020,
21 Defendants noticed Plaintiff’s deposition for a second time, to occur on October 7, 2020,
22 however, Plaintiff failed to appear. (Mot. 2.)
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A.

Background

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Preliminarily, although not raised in briefing, the Court will highlight a previous instance

25 where Plaintiff failed to communicate with the other parties and failed to appear for the
26 mandatory scheduling conference held on October 15, 2019. (ECF Nos. 39, 40.) The Court
27 issued an order to show cause why sanctions should not be imposed, and Plaintiff filed a
28 response detailing his traveling to a different family residence in Arizona, then surrendering into

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1 custody in Arizona. (ECF Nos. 41, 43.) The Court accepted Plaintiff’s explanation given the
2 circumstances of moving between family members and being subsequently incarcerated, and on
3 November 27, 2019, the Court discharged the order to show cause. (ECF No. 45.) Plaintiff last
4 filed a notice of change of address with the Court on November 7, 2019, indicating he may be
5 served at: Yavapai County Detention Center, 2830 N. Commonwealth Drive, Suite 105, Camp
6 Verde, AZ 86322 (the “Yavapai Address”). (ECF No. 44.) This was the last filing by Plaintiff
7 in this action.
Prior to noticing Plaintiff’s June 16, 2020 deposition, Defendants’ counsel contacted the

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9 jail where Plaintiff was believed to be housed in order to determine whether the institution had
10 videoconferencing equipment that could be accessed for the deposition. (Mot. 3.) Counsel was
11 advised by the institution that Plaintiff had been released from their custody, was no longer
12 housed at the jail, and counsel was provided with Plaintiff’s last known address: 17009 E.
13 Duffers, Spring Valley, Arizona 86333 (the “Spring Valley Address”). (Mot. 3; see also Decl.
14 K. Hammond Supp. Defs.’ Mot. Compel Disc. (“Hammond Decl.”) ¶ 3, ECF No. 52-1 at 1-3.)
15 On May 27, 2020, Defendants noticed Plaintiff’s deposition to occur on June 16, 2020.2 The
16 notice of deposition was sent to the address provided by the institution, the Spring Valley
17 Address. (Mot. 3; Hammond Decl. ¶ 6, ECF No. 52-1 at 2; ECF No. 50-1 at 10.) Plaintiff failed
18 to appear on June 16, 2020, at the location noticed for the deposition. (Mot. 3; Hammond Decl.
19 ¶ 10, ECF No. 52-1 at 2; ECF No. 50-1 at 15-17.)
On June 17, 2020, the Court served an order substituting Defendants’ attorney on

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21 Plaintiff by mail. (ECF No. 47.) Due to Plaintiff’s failure to appear at the June 16, 2020
22 deposition, on June 18, 2020, Defendants’ counsel sent a follow-up letter to Plaintiff asking him
23 to contact counsel about setting up a date and time for taking the deposition, and the letter was
24 directed at three different addresses: (1) the last known address provided by the institution, (the
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Defendants’ briefing states the notice was sent on May 22, 2020 (Mot. 3), however, counsel’s declaration attached
to the previous motion to compel states the notice was sent on May 26, 2020, the notice was signed by counsel on
May 26, 2020, and the proof of service of the deposition notice states it was mailed on May 27, 2020. (Mot. 3;
Hammond Decl. ¶ 6, ECF No. 52-1 at 2; ECF No. 50-1 at 10.) Further, it appears that the proof of service is blank
on the line for a signature, although the declarant’s name is typed into the other space. (ECF No. 50-1 at 10.) The
Court noted these discrepancies in the previous order granting in part and denying in part Defendants’ motion to
compel Plaintiff’s deposition. (ECF No. 55 at 4-5.)
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1 Spring Valley Address); (2) the address on file with the Court at the time (the Yavapai Address);
2 and (3) the address of Plaintiff’s mother’s home, 925 Salem Drive, Hanford, California 93230
3 (the “Hanford Address”). (Mot. 3; ECF No. 50-1 at 19-21.) Plaintiff did not respond to the
4 letters. (Mot. 3; Hammond Decl. ¶¶ 11-16, ECF No. 52-1 at 2-3.)
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On July 7, 2020, Defendants filed a motion for an order compelling Plaintiff’s attendance

6 at his deposition, or in the alternative, prohibiting Plaintiff’s testimony in further proceedings.
7 (ECF No. 52.) On the same date, the order substituting Defendants’ attorney mailing was
8 returned as undelivered, and additionally, using the address referenced in the proof of service of
9 Defendants’ motion to compel Plaintiff’s deposition, the Clerk’s Office for this Court updated
10 Plaintiff’s address to the Spring Valley Address, and then re-served the substitution of attorney
11 form on Plaintiff. (ECF No. 53.)
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On July 20, 2020, the Court granted in part and denied in part Defendants’ motion for an

13 order compelling Plaintiff’s deposition. (ECF No. 55.) As stated in the order, the last mail
14 directed to Plaintiff was returned undelivered on July 7, 2020, and therefore under the Local
15 Rules, Plaintiff was required to notify the Court and opposing parties within sixty-three (63) days
16 thereafter of a new address. (ECF No. 55 at 5.) The Court’s order warned Plaintiff that if he did
17 not provide the Court with an updated address within sixty-three (63) days of July 7, 2020, or
18 otherwise respond to the Court, the Court would recommend dismissal of this action for failure
19 to prosecute given the Plaintiff’s repeated failure to communicate with the Court and the other
20 parties in this action, and update his address. (Id. at 5, 8.) The Court also ordered Plaintiff to
21 appear for and participate in a deposition on a date to be noticed by Defendants, and specifically
22 warned Plaintiff that if he failed to appear for the deposition, the Court would impose appropriate
23 sanctions, including possibly dismissing this action. (Id. at 8.)
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Following the Court’s July 20, 2020 order, Defendants noticed Plaintiff’s deposition for

25 October 7, 2020, and Plaintiff again failed to appear. (Mot. 4; Exs. A-B, ECF No. 56 at 10-15.)
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B.

The Factors Weigh in Favor of Dismissal as a Sanction

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Again, the Court is to weigh the following five factors in considering the sanction of

28 dismissal: “(1) the public’s interest in the expeditious resolution of litigation; (2) the court’s need

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1 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
2 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henderson
3 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
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The First and Second Factors Weigh in Favor of Dismissal

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Defendants argue that the first and second factors weigh in favor of dismissal for the

6 following reasons: the action has “languished” since the scheduling order issued on November
7 27, 2019; Defendants have exerted considerable time and effort in tracking Plaintiff to the jail in
8 Arizona; upon his release from jail, Plaintiff failed to provide the Court with an updated address,
9 and Defendants were again required to track down Plaintiff’s last known address; “Defendants
10 then served a deposition notice to Plaintiff at three separate addresses, noting that the deposition
11 was to take place on June 16, 2020”3; Plaintiff did not appear for that deposition; and finally,
12 after the Court ordered Plaintiff to appear for a deposition and a second deposition was set for
13 October 7, 2020, Plaintiff again failed to appear. (Mot. 4.) Defendants argue that Plaintiff has
14 failed to participate in discovery, failed to comply with the Court’s orders, failed to file any
15 documentation as to why he cannot appear for a deposition, and district courts find similar
16 circumstances justify dismissal. (Mot. 5.)
The Court agrees with Defendants. Plaintiff has failed to abide by the Court’s discovery

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18 orders, failed to appear for two depositions, failed to provide the Court or Defendants with a new
19 contact address, and Plaintiff has not submitted any responsive filing to the previous motion to
20 compel his deposition, nor to this motion for terminating sanctions. The Court finds factors (1)
21 and (2)—the public’s interest in expeditious resolution of litigation and the Court’s need to
22 manage its docket—weigh in favor of dismissal.

See Bradford v. Marchak, No.

23 114CV1689LJOBAMPC, 2018 WL 3046974, at *5 (E.D. Cal. June 19, 2018) (recommending
24 granting motion for terminating sanctions and dismissal, noting “Plaintiff’s pro se status does not
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The Court notes that Defendants’ statement here appears incorrect, as while there is evidence that follow-up letters

26 were sent to Plaintiff at the three different addresses after the June 2020 deposition date (Mot. 3; ECF No. 50-1 at

19-21), counsel’s previous declarations only state that the notice of deposition was sent to the last known address,

27 the Spring Valley Address (Hammond Decl. ¶¶ 4-6, ECF Nos. 50-1 at 13, 52-1 at 2), and the proof of service for the
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June 2020 deposition only references the Spring Valley Address (ECF No. 50-1 at 10).

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1 excuse intentional noncompliance with discovery rules and court orders”), report and
2 recommendation adopted, No. 114CV1689LJOBAMPC, 2018 WL 10923433 (E.D. Cal. July 9,
3 2018).); Sanchez, 298 F.R.D. at 464 (granting motion for terminating sanctions where plaintiff
4 failed to respond to interrogatories, failed to respond to defense counsel’s letter extending
5 plaintiff's time to respond to the interrogatories, requiring defendants to file a motion to compel,
6 then after the court granted a motion to compel and warned plaintiff that further noncompliance
7 could result in the imposition of sanctions, including dismissal, plaintiff responded only by
8 requesting more time, offering no excuse for his previous noncompliance except the fact that he
9 was incarcerated and lacked funds); Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir.
10 1987) (Where plaintiff failed to comply with pretrial order to present line of questioning for
11 witnesses, finding it “clear that these two factors support the district court’s decision to dismiss
12 [as the] dilatory conduct greatly impeded resolution of the case and prevented the district court
13 from adhering to its trial schedule.”).
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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

16 at 1423. “In determining whether a defendant has been prejudiced, we examine whether the
17 plaintiff’s actions impair the defendant’s ability to go to trial or threaten to interfere with the
18 rightful decision of the case.” Malone, 833 F.2d at 131 (finding failure to comply with pretrial
19 order more than 30 days before trial date was “no doubt . . . [a] last-minute notification of her
20 decision not to comply with the pretrial order [and] had a prejudicial effect on the
21 Government.”). The Ninth Circuit has stated “where a court order is violated, factors 1 and 2
22 support sanctions and 4 cuts against case-dispositive sanctions, so 3 and 5, prejudice and
23 availability of less drastic sanctions, are decisive.” Valley Engineers Inc. v. Elec. Eng’g Co., 158
24 F.3d 1051, 1057 (9th Cir. 1998).
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Defendants argue that given Plaintiff has ignored multiple notices setting his deposition,

26 the motion to compel his deposition, and the Court’s order regarding such, Plaintiff’s continued
27 thwarting of his obligations to participate in discovery warrants dismissal as to avoid additional
28 time and resources in pursuing discovery or filing a dispositive motion. (Mot. 6.)

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The Court finds Plaintiff’s repeated failures to comply with discovery, or provide an

2 updated address, have caused unreasonable delay to this litigation. See Henderson, 779 F.2d at
3 1423 (“Unreasonable delay creates a presumption of injury to the defense.”) (emphasis added);
4 but see Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990) (“A defendant
5 suffers prejudice if the plaintiff’s actions impair the defendant’s ability to go to trial or threaten
6 to interfere with the rightful decision of the case . . . Delay alone has been held to be insufficient
7 prejudice . . . [but] [f]ailure to produce documents as ordered, however, is considered sufficient
8 prejudice.”).

Given all the facts surrounding Plaintiff’s failures to comply with discovery

9 obligations, and Plaintiff’s failure to respond to the previous motion to compel and failure to
10 respond to the instant motion, the Court finds the risk of prejudice to Defendants weighs in favor
11 of dismissal. See Kirkelie v. Thissell, No. 115CV00735DADSABPC, 2018 WL 1272227, at *2
12 (E.D. Cal. Mar. 9, 2018) (“Defendants have suffered prejudice due to Plaintiff’s failure to
13 respond to discovery requests [as] [t]he failure to obtain discovery information significantly
14 impairs the Defendants’ ability to go to trial and to determine whether Plaintiff has adequately
15 exhausted administrative remedies and to make rightful and informed decisions as to whether
16 this affirmative defense should be explored [and the] failure to respond to discovery has created
17 an unreasonable delay, which in turns creates a presumption of prejudice [while] the additional
18 efforts to obtain discovery responses required Defendants to incur expenses that would not
19 otherwise have been incurred had Plaintiff responsibility cooperated.”); Adriana Int’l Corp., 913
20 F.2d at 1412 (finding the repeated failure to appear at scheduled depositions compounded by
21 refusal to comply with court-ordered production of documents constituted interference with the
22 rightful decision of the case, and therefore prejudice was established); Chism v. Nat’l Heritage
23 Life Ins. Co., 637 F.2d 1328, 1331 (9th Cir. 1981) (“Chism or his attorneys continually flouted
24 discovery rules, failed to comply with pretrial conference obligations, and repeatedly violated the
25 local rules of court . . . Plaintiff’s misconduct prejudiced his opponent, violated important
26 policies designed to insure efficiency in legal proceedings at the trial court level and persisted to
27 the very end.”).
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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.

3 Henderson, 779 F.2d at 1423. As Defendants acknowledge, the public policy favoring merit4 based dismissals essentially always weighs against terminating sanctions. See, e.g., Pagtalunan
5 v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy favors disposition of cases on the
6 merits. Thus, this factor weighs against dismissal.”). However, this factor is not dispositive.
7 See, e.g., In re Eisen, 31 F.3d 1447, 1454 (9th Cir. 1994) (“Although there is indeed a policy
8 favoring disposition on the merits, it is the responsibility of the moving party to move towards
9 that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics . . .
10 [plaintiff] certainly has not fulfilled his responsibility [and] [t]hus, the public policy favoring the
11 resolution of disputes on their merits does not outweigh [the] four-year delay or the prejudice
12 suffered.”) (internal quotation marks and citations omitted).
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While this factor weighs against dismissal, as explained herein, on balance, the totality of

14 the circumstances and the other factors weigh in favor of dismissal of the action. See In re
15 Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (“We have
16 often said that the public policy favoring disposition of cases on their merits strongly counsels
17 against dismissal . . . [but] [a]t the same time, a case that is stalled or unreasonably delayed by a
18 party’ s failure to comply with deadlines and discovery obligations cannot move forward toward
19 resolution on the merits [and] [t]hus, we have also recognized that this factor ‘lends little
20 support’ to a party whose responsibility it is to move a case toward disposition on the merits but
21 whose conduct impedes progress in that direction.”) (internal citations omitted).
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The Fifth Factor Weighs in Favor of Dismissal

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The Court is to next weigh the availability of less drastic sanctions. Henderson, 779 F.2d

24 at 1423. “The district court need not exhaust every sanction short of dismissal before finally
25 dismissing a case, but must explore possible and meaningful alternatives.” Id. at 1424; but see
26 Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) (“We have indicated a preference
27 for explicit discussion by the district court of the feasibility of alternatives when ordering
28 dismissal . . . However, we have never held that explicit discussion of alternatives is necessary

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1 for an order of dismissal to be upheld [and] [u]nder the egregious circumstances present here,
2 where the plaintiff has purposefully and defiantly violated a court order, it is unnecessary
3 (although still helpful) for a district court to discuss why alternatives to dismissal are
4 infeasible.”). “Moreover, explicit discussion of alternatives is unnecessary if the district court
5 actually tries alternatives before employing the ultimate sanction of dismissal.” Malone, 833
6 F.2d at 132. “Finally, the case law suggests that warning a plaintiff that failure to obey a court
7 order will result in dismissal can suffice to meet the ‘consideration of alternatives’ requirement.”
8 Id. (collecting cases).
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Defendants argue that in addition to the notice provided expressly in Federal Rule of

10 Civil Procedure 37, this Court has explicitly granted Plaintiff an additional opportunity to
11 participate in a deposition following his initial failure to appear, and in the previous order
12 granting Defendants’ motion to compel, the Court expressly warned Plaintiff that his failure to
13 comply with the Court order and appear for a deposition, and failure to update his address and
14 prosecute this action, could result in dismissal of this action. (ECF No. 55 at 7-8.)
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The Court finds that through the Court’s previous order declining to impose sanctions

16 and ordering Plaintiff to appear for a deposition, and explicit warning to Plaintiff that the failure
17 to comply could result in dismissal of this action, this Court has considered alternatives.
18 Additionally, the Court finds other alternatives to not be a feasible remedy at this point. If
19 Plaintiff had filed a response to the previous motion to compel, a response to this motion for
20 terminating sanctions, filed a change of address form, or appeared at the hearing held on
21 November 18, 2020, the Court could be in a better position to potentially consider whether less
22 drastic sanctions are warranted. As evidenced by the record in this case, Plaintiff’s inaction and
23 failure to abide by his discovery obligations demonstrate he has abandoned this litigation and it
24 is reasonable to dismiss the action, in lieu of lesser sanctions. The Court finds this factor weighs
25 in favor of dismissal.
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5.

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 two

28 depositions, failed to provide an updated address to the Court, has ignored the Court’s July 20,

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1 2020 order to submit for a deposition despite the warning of potential dismissal for failure to
2 comply, and the Court finds that Plaintiff has abandoned this litigation.
3 recommends that dismissal, with prejudice, is justified.

The undersigned

See Pagtalunan, 291 F.3d at 643

4 (affirming district court’s dismissal where three factors weighed in favor of dismissal, and two
5 factors weighed against dismissal); Scott v. Belmares, No. CV99-12458GAF(AJW), 2008 WL
6 2596764, at *7 (C.D. Cal. Apr. 30, 2008) (“The five-factor test is a disjunctive balancing test, so
7 not all five factors must support dismissal . . . [f]our of the five factors strongly support dismissal
8 in this case . . . the record supports the conclusion that plaintiff’s noncompliance with court rules
9 and orders was willful and unjustified [and thus] [t]he terminating sanction of dismissal with
10 prejudice is warranted under Rules 41(b) and 37(b) of the Federal Rules of Civil Procedure and
11 this court’s Local Rules.”), report and recommendation adopted, No. CV99-12458GAF(AJW),
12 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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1.

Defendants’ motion for terminating sanctions be GRANTED; and

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2.

This action be dismissed, with prejudice, for failure to comply with discovery

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obligations, failure to comply with Court orders, failure to prosecute, and failure

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to provide an updated address to the Court.
This findings and recommendations is submitted to the district judge assigned to this

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9 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen
10 (14) days of service of this recommendation, Plaintiff may file written objections to this findings
11 and recommendations with the court.

Such document should be captioned “Objections to

12 Magistrate Judge’s Findings and Recommendations.”

The district judge will review the

13 magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
14 Plaintiff is advised that failure to file objections within the specified time may result in the
15 waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
16 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.

19 Dated:

November 19, 2020
UNITED STATES MAGISTRATE JUDGE

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