Ndulue v. The Fremont-Rideout Health Group

Filing 68

ORDER signed by District Judge Kimberly J. Mueller on 4/12/2017 DENYING 35 Motion to Dismiss; CAUTIONING all parties and their counsel to comply fully with this Court's standing order in all respects going forward. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHUKWUEMEKA NDULUE, M.D.,

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Plaintiff,

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No. 2:14-cv-00735-KJM-EFB

v.

ORDER

THE FREMONT-RIDEOUT HEALTH
GROUP,
Defendant.

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The doctor plaintiff, Chukwuemeka Ndulue, M.D., is suing defendant Fremont-

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Rideout Health Group for retaliation and interference with business, economic, and contractual

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relationships. Compl. ¶ 1, ECF No. 1. The hospital moves for terminating sanctions against

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plaintiff, based on his alleged threats of violence towards defense counsel. Mot., ECF No. 35.

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Plaintiff opposes. Opp’n, ECF No. 46. Defendant replied. Reply, ECF No. 47. The court

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submitted the matter without hearing on January 24, 2017. Min. Order, ECF No. 49. As

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discussed below, the court DENIES defendant’s request.

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I.

BACKGROUND

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A. Judicial Notice

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Defendant requests the court take judicial notice of court documents and

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depositions from a prior case that defendant says shows a pattern of plaintiff’s allegedly

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threatening conduct. Req. for Jud. Notice (“RJN”), ECF No. 36; Young Decl., ECF No. 37.

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Courts may judicially notice “a fact that is not subject to reasonable dispute,

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because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be

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accurately and readily determined from sources whose accuracy cannot reasonably be

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questioned.” Fed. R. Evid. 201(b)(1)–(2). Courts also may judicially notice the existence of

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public matters in a judicial proceeding that “direct[ly] relat[e] to the matters at issue,” but not the

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veracity of the arguments or any disputed facts within that proceeding. United States v. S. Cal.

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Edison Co., 300 F. Supp. 2d 964, 974 (E.D. Cal. 2004) (quoting U.S. ex rel. Robinson Rancheria

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Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)). A court also may not

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judicially notice the content of correspondence between parties, Provencio v. Vazquez, 258

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F.R.D. 626, 638 n.4 (E.D. Cal. 2009), or a party’s interpretation of a public record, S. Cal. Edison

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Co., 300 F. Supp. 2d at 974.

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Here, the court denies defendant’s request for judicial notice of Exhibits C through

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G, which comprise deposition testimony. See Exs. C, D, E, F, G, ECF No. 37. Depositions are

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not judicially noticeable under Rule 201(b), Provencio, 258 F.R.D. at 638, especially where, as

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here, the parties vehemently dispute the implications of their content, Madu Decl. ¶ 6, ECF No.

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46-1. The court does not reach defendant’s request to judicially notice Exhibits B (a complaint),

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H (prior order) and I (trial minutes), as their relevance is neither apparent nor explained. See

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RJN; Exs. B, H, I, Young Decl. ¶¶ 3, 9, 10. Accordingly, the record on the current motion

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includes the declarations of defense counsel Mr. Preston Young, plaintiff’s counsel Mr. Anthony

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Madu, and plaintiff. See generally Young Decl., ECF No. 37; Madu Decl.; Pl.’s Decl., ECF No.

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46-6.

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B. Factual Allegations

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Defendant alleges that during a December 12, 2016 deposition of plaintiff’s

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Certified Public Accountant Julie Shea, plaintiff threatened defense counsel, Mr. Young. Young

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Decl. ¶¶ 16–22. Young contends that after he refused plaintiff’s request to speak outside, plaintiff

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approached “in an aggressive manner” within inches of Young’s face and threatened, “If you

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continue interfering with my practice and interfering with my patients and interfering with the

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hospital and interfering with my lawyers I am going to make you pay. You are going to pay for

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this.” Id. ¶¶ 17–19. Young contends plaintiff then said, “I have had enough of this interference.

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I will get you, I promise that. You won’t like what happens.” Id. ¶ 20. Young views this threat

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as an intimidation tactic, id. ¶ 30, but plaintiff calls it a “brief chat” in which he asked Young and

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the Hospital to “stop interfering with [his] lawyers” or he would “report them to the authorities,”

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Pl.’s Decl. ¶ 5. Young claims he suspended discovery after this threat because of safety concerns.

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Mot. at 1; Young Decl. ¶ 27.

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II.

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SANCTIONS
Defendant argues plaintiff’s alleged threat was a bad faith abuse of the litigation

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process and asks the court to exercise its inherent sanctioning power to dismiss the suit, with

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prejudice. Mot. at 13, 18.

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A district court has the inherent power to discipline parties inside and outside the

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courtroom if their conduct disrupts the orderly and efficient manner of court proceedings.

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Chambers v. NASCO, Inc., 501 U.S. 32, 43–44 (1991). This inherent power, which “ought to be

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exercised with great caution[,]” permits courts to fashion appropriate sanctions for abuses of the

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judicial process. Id. at 44–45 (internal citation and quotation marks omitted). Before imposing

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sanctions under its inherent authority, a court must make explicit findings of bad faith or willful

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misconduct. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258–59, (1975). Bad

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faith exists where there is “reckless misconduct combined with an additional factor such as

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frivolousness, harassment, or an improper purpose.” Gomez v. Vernon, 255 F.3d 1118, 1134 (9th

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Cir. 2001)

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The most extreme sanction available under the court’s inherent power is that

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requested here, outright dismissal. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).

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Dismissal under the court’s inherent power is appropriate only when “a party has engaged

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deliberately in deceptive practices that undermine the integrity of judicial proceedings . . . and

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engaged in conduct utterly inconsistent with the orderly administration of justice.” Leon v. IDX

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Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quotation omitted). Before imposing the “harsh

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sanction of dismissal, courts should consider (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its dockets; (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.” Ferdik, 963 F.2d at 1261 (internal citation and quotation

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marks omitted). The court need not make explicit findings on each factor, but it must consider

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less severe alternatives to outright dismissal. Id.; see United States v. Nat’l Med. Enter., Inc.,

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792 F.2d 906, 912 (9th Cir. 1986) (abuse of discretion to dismiss case without first considering

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less drastic sanctions). Due process concerns also mandate a connection between a party’s

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“misconduct and the matters in controversy such that the transgression ‘threatens to interfere with

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the rightful decision of the case.’” Anheuser-Busch, Inc. v. Nat. Beverage Distrib., 69 F.3d 337,

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348 (9th Cir. 1995) (internal citation and quotation marks omitted).

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Here, plaintiff’s allegedly threatening conduct is insufficient to warrant dismissal.

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The court declines to make an explicit finding that plaintiff engaged in bad faith conduct based on

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the current record. The only proof of the alleged threat is Young’s potentially self-serving

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declaration, which plaintiff’s declaration directly contradicts. Compare Young Decl., with Pl.’s

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Decl. ¶¶ 5–7; cf. Kalwasinski v. Ryan, No. 96-CV-6475, 2007 WL 2743434, at *3 (W.D.N.Y.

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Sept. 17, 2007) (finding sufficient proof of violent threats to warrant dismissal where the court

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had a copy of a plaintiff’s letter threatening “to murder the[] defendants and their families.”).

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Although Young contends Julie Shea and the deposition court reporter also witnessed the threat,

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he avers he avers he did not file declarations from them “due to [his] genuine concern for their

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safety.” Young Decl. ¶ 32.

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Even if there were not two sides to the story of what happened at deposition,

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defendant’s requested relief of dismissal does not meet the requirements of the five Ferdik

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factors. The first, second, and third factors—the public’s interest in expeditious resolution,

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impact on the court’s docket, and risk of prejudice to defendant—all weigh against dismissal.

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Plaintiff’s conduct has not yet caused an unnecessary delay or waste of the court’s resources.

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Since the alleged threat, defendant has continued to litigate and moved for summary judgment.

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See Def.’s Mot., Jan. 13, 2017, ECF No. 41. Although Young contends plaintiff’s threat forced

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him to freeze discovery out of fear for his safety, Mot. at 18, the nature of plaintiff’s words here

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does not support a litigation freeze or dismissal of suit: The alleged threat is unrecorded, not

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inherently violent, and comes from a pediatrician with an apparent history of hyperbolic

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outbursts. Even if vigorously asserted, the statements that “You are going to pay for this” and “I

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will get you, I promise that. You won’t like what happens.”, Young Decl. ¶¶ 17–20, do not

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support the relief defendant seeks. Cf. Kalwasinski, 2007 WL 2743434, at *3 (murder threat

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sufficiently disruptive where it came from prisoner, was unambiguous, and memorialized on

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paper).

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The fourth factor, the public policy favoring dispositions on their merits, always

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weighs against dismissal, as an early dismissal based on an alleged threat would preclude the

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parties from finally resolving the merits of their dispute. Finally, and perhaps most importantly,

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the availability of less drastic and more effective sanctions if supported militates against, if not

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outright prohibits, dismissal. Defendant could move for a protective order, or for injunctive relief

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against future threats, and these are examples of less severe sanctions. Defendant’s purported

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goal in raising this motion, to ensure the safety of the parties, can be accomplished by other

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means. The extreme sanction of dismissal is not warranted.

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II.

CONCLUSION

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The court DENIES defendant’s motion for dismissal. The parties and their

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counsel are cautioned to comply fully with this court’s standing order in all respects going

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forward.

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IT IS SO ORDERED.

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This order resolves ECF No. 35

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DATED: April 12, 2017.

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UNITED STATES DISTRICT JUDGE

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