Kent v. California Department of Consumer Affairs et al

Filing 73

ORDER signed by Magistrate Judge Kendall J. Newman on 5/3/2012 DENYING 65 Motion for Sanctions; SANCTIONING Plaintiff in the amount of $100, payable to the moving defendants through their counsel within 45 days; ORDERING Plaintiff to file a St atement with the Court within 7 days of payment; DISCHARGING the 71 Order to Show Cause; DIRECTING the Clerk of Court to serve the 62 Status (Pretrial Scheduling) Order on Plaintiff by 5/7/2012; ORDERING Plaintiff to serve his initial disclosures pursuant to F.R.Cv.P. 26(a)(1) on the defendants who have appeared in the action by 5/21/2012. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN KENT,

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Plaintiff,

No. 2:09-cv-02905 KJM KJN PS

v.
STUART RIND; RICK VILLUCCI;
DIANA ROACH; RICK LOPEZ;
STEPHEN TAKIMOTO; LESLIE
YOAKUM; CARL VEGA; SUE
STIREWALT; KEVIN KERR; JIM
KLEIMAN; THOMAS EBLING; SUE
PAYNE; ANDREA SOUZA; ANITA
SISNEROS; JACQUELYN MAES;
PATRICIA NELSON; and UNKNOWN
CSLB EMPLOYEES 1-15,

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Defendants.

ORDER

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Presently before the court1 is a motion for terminating sanctions, which was filed

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by defendants Kevin A. Carr, Thomas Ebling, Jim Z. Kleiman, Rick Lopez, Patricia Nelson, Sue

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Payne, Diana Roach, Anita Sisneros, Sue Stirewalt, Stephen Takimoto, Carl Vega, Rick Villucci,

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and Leslie Yocum-Howell (collectively, “Moving Defendants”) pursuant to Federal Rule of Civil

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This action proceeds before the undersigned pursuant to Eastern District of California
Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).
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Procedure 37(b)(2). Specifically, the Moving Defendants request that plaintiff’s case be

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dismissed as a result of plaintiff’s discovery-related failure to provide initial disclosures pursuant

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to Federal Rule of Civil Procedure 26(a)(1), as ordered by the court. (See Notice of Mot. & Mot.

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for Sanctions at 1-2, Dkt. No. 65; see also Status (Pretrial Scheduling) Order at 4, Dkt. No. 62.)

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Alternatively, defendants seek an order “prohibiting Plaintiff from presenting any witnesses or

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evidence at hearing or trial,” which is essentially a different formulation of the requested

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terminating sanction. (Mot. for Sanctions at 2.) Finally, defendants seek monetary sanctions in

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the amount of $850 as an award of reasonable expenses incurred in bringing this motion. (Id.)

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Plaintiff failed to file a timely written opposition or any other response to the

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motion for terminating sanctions, which constituted yet another violation of the court’s Local

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Rules by plaintiff. See E. Dist. Local Rule 230(c).2 Accordingly, the court entered an Order to

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Show Cause (“OSC”) requiring plaintiff to show cause why: (1) “Plaintiff failed to file an

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opposition or statement of non-opposition in regards to defendants’ motion for terminating

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sanctions”; (2) “Plaintiff’s case should not be dismissed with prejudice pursuant to Federal Rule

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of Civil Procedure 41(b) and Local Rules 110 and 183(a), based on plaintiff’s failure to prosecute

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his case and comply with the court’s Local Rules”; and (3) “Plaintiff should not be ordered to pay

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defendants $850 as reasonable expenses incurred by defendants in pursuing their discovery

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related motion.” (OSC, May 1, 2012, Dkt. No. 71.)

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On May 1, 2012, plaintiff filed a response to a statement that had been filed by the

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Moving Defendants, addressing plaintiff’s failure to oppose the motion for terminating sanctions

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Eastern District Local Rule 230(c) provides:

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(c) Opposition and Non-Opposition. Opposition, if any, to the granting
of the motion shall be in writing and shall be filed and served not less than
fourteen (14) days preceding the noticed (or continued) hearing date. A
responding party who has no opposition to the granting of the motion shall
serve and file a statement to that effect, specifically designating the motion
in question. No party will be entitled to be heard in opposition to a motion
at oral arguments if opposition to the motion has not been timely filed by
that party. . . .
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(see Dkt. Nos. 66, 72). It does not appear that plaintiff filed this document in response to the

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OSC. In any event, plaintiff admits that he did not respond to the motion for terminating

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sanctions and does not oppose the imposition of monetary sanctions on him. However, plaintiff

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represents that he did not respond to the Moving Defendants’ motion because he believes that

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motion was prematurely filed. Specifically, plaintiff states that he was instructed at the status

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(pretrial scheduling) conference that he should await the court’s order in regards to the

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scheduling of this case, including the service of initial disclosures, and that plaintiff never

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received such an order. Plaintiff contends that he did not serve his initial disclosures because he

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never received the court’s Status (Pretrial Scheduling) Order (“Scheduling Order”), which was

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entered on February 7, 2012.
A review of the court’s docket reveals that the Clerk of Court apparently did not

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conventionally serve the Scheduling Order on plaintiff by mail, which is the ordinary practice of

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the court in regards to pro se parties. In light of this inadvertent omission, the undersigned denies

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the Moving Defendants’ motion for terminating sanctions and discharges the OSC entered on

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May 1, 2012, except as stated below. Additionally, the court directs the Clerk of Court to serve

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the Scheduling Order on plaintiff, and orders plaintiff to serve his initial disclosures on the

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Moving Defendants on or before May 21, 2012.

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However, the court imposes sanctions on plaintiff in an amount of $100 for

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plaintiff’s failure to oppose the motion for terminating sanctions. It is not sufficient for plaintiff

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not to oppose a noticed motion simply because he thinks the motion was prematurely filed, and

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plaintiff’s failure to respond is a violation of Local Rule 230(c). If plaintiff believes that a

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motion was filed in error or lacks merit, he must oppose that motion or risk, at a minimum, not

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being heard in opposition to the motion. Indeed, the undersigned nearly recommended the

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dismissal of plaintiff’s case with prejudice because of plaintiff’s failure to oppose the motion for

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terminating sanctions, as well as plaintiff’s long and still-growing history of failing to comply

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with applicable procedural rules and the court’s orders.
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That said, the undersigned does not award $850 to the Moving Defendants, as

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requested. Although the initial error in regards to the service of the Scheduling Order lies with

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the court, and plaintiff failed to oppose the motion for terminating sanctions, this entire dispute

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could have potentially been resolved without the filing of a motion if the Moving Defendants’

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counsel attempted to contact plaintiff when that counsel did not receive plaintiff’s initial

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disclosures by the court-imposed deadline. However, it does not appear from the record that the

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Moving Defendants’ counsel ever attempted to contact plaintiff before filing the motion for

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terminating sanctions. (See generally Walter Decl., Dkt. No. 65.) Accordingly, the undersigned

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finds substantial justification for the imposition of $100 in sanctions on plaintiff, rather than

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$850.
Finally, the court warns plaintiff for the final time that if he again fails to oppose

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a motion or otherwise fails to comply with the court’s orders and Local Rules, the undersigned

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will recommend that plaintiff’s case be dismissed with prejudice. The court has warned plaintiff

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ad nauseam of the potential consequences for plaintiff’s myriad failures in this case, and has now

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sanctioned plaintiff twice. Plaintiff will not be warned again in this regard.

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

The motion for terminating sanctions (Dkt. No. 65) filed by defendants

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Kevin A. Carr, Thomas Ebling, Jim Z. Kleiman, Rick Lopez, Patricia Nelson, Sue Payne, Diana

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Roach, Anita Sisneros, Sue Stirewalt, Stephen Takimoto, Carl Vega, Rick Villucci, and Leslie

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Yocum-Howell is denied.

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2.

Plaintiff is sanctioned in the amount of $100, payable to the moving

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defendants through their counsel within 45 days of the date of this order. Plaintiff shall file a

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statement with the court within seven days of payment.

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3.

The Order to Show Cause filed on May 1, 2012, is discharged.

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The Clerk of Court is directed to serve the Status (Pretrial Scheduling)

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Order (Dkt. No. 62) on plaintiff by mail no later than May 7, 2012.
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Plaintiff shall serve his initial disclosures pursuant to Federal Rule of Civil

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Procedure 26(a)(1) on the defendants who have appeared in the action no later than May 21,

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2012.

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IT IS SO ORDERED.
DATED: May 3, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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