Ferguson v. Redding Police Department et al

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 04/25/19 RECOMMENDING that the 20 Motion for Terminating Sanctions be granted; that Defendants' alternative request for additional monetary sanctions be denied; and this action be dismissed, without prejudice, for failure to comply with courts orders. Referred to Judge Troy L. Nunley; Objections to these F&Rs due within 14 days. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNIE FERGUSON,

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Plaintiff,

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No. 2:17-CV-1930-TLN-DMC

v.

FINDINGS AND RECOMMENDATIONS

REDDING POLICE DEPARTMENT, et
al.,
Defendants.

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Plaintiff, who is proceeding with retained counsel, brings this civil action alleging

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civil rights violations. Pending before the court is defendants’ motion for terminating sanctions

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(ECF No. 20). A hearing was held on April 3, 2019, at 10:00 a.m. before the undersigned in

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Redding, California. Dave King, Esq., appeared for defendants. Ralph Rios, Esq., appeared for

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plaintiff. A continued hearing was held on April 19, 2019, at 11:00 a.m., also before the

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undersigned in Redding, California. Dave King, Esq., and Tracey Werner, Esq., appeared for

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defendants. Ralph Rios, Esq., appeared for plaintiff. After considering the arguments presented

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by counsel, the matter was submitted.

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I. BACKGROUND
On October 9, 2018, defendants filed a motion to compel. See ECF No. 9.

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Plaintiff failed to participate in the mandated meet-and-confer process and failed to appear at

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the hearing on defendants’ motion on November 14, 2018. On November 20, 2018, the court

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issued an order granting defendants’ unopposed motion to compel and ordered plaintiff to

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provide verified responses to discovery requests without objection on or before November 26,

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2018. See ECF No. 17. The court also directed plaintiff’s counsel to appear before the court to

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show cause why sanctions should not be imposed. See id. Following an order to show cause

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hearing on December 20, 2019, the court issued a further order awarding defendants sanctions

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in the amount of $3,216.00 payable within 14 days of the court’s order. See ECF No. 19

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(December 20, 2018, order). Discovery closed on February 1, 2019. See ECF No. 8.

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According to defendants, plaintiff served supplemental responses to discovery

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requests (interrogatories and requests for production of documents) on November 26, 2018.

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See ECF No. 20-2 (Werner declaration). On November 27, 2018, defendants’ counsel sent

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plaintiff’s counsel an email detailing continued problems with plaintiff’s discovery responses.

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See id. at Exhibit C. After plaintiff’s counsel failed to respond, defendants’ counsel sent

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another email on December 19, 2018, detailing the same problems with the supplemental

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responses. See id. at Exhibit D. Again, plaintiff’s counsel did not respond. Defendants’

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counsel sent a third email regarding deficient discovery responses on December 28, 2018. See

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id. at Exhibit E. After several attempts to coordinate schedules, counsel finally met and

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conferred on January 10, 2019. At that meeting, plaintiff’s counsel agreed to pay the unpaid

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sanctions award, produce documents, and serve supplemental responses. See ECF No. 20-2

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(Werner declaration). Defendants state they have still not received any responsive documents

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or supplemental responses, in violation of the court’s prior orders.

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As to the monetary sanctions the court ordered plaintiff’s counsel to pay within

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14 days of the December 20, 2018, order, at the initial hearing on the instant motion held on

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April 3, 2019, counsel represented to the court that he had that same day instructed his office to

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deliver a check to defendants’ counsel. The sanctions, however, were not paid until the day of
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the continued hearing on April 19, 2019, at which time plaintiff’s counsel handed defendants’

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counsel a check.

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II. DISCUSSION
Defendants now seek terminating sanctions pursuant to Federal Rule of Civil

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Procedure 37(b)(2)(A) for plaintiff’s failure to comply with the November 20, 2018, and

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December 20, 2018, orders. Alternatively, defendants seek additional monetary sanctions for

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reasonable attorney’s fees and costs associated with the ongoing discovery dispute.

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In opposition, plaintiff’s counsel states he has complied with the court’s orders,

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though he admits he failed to pay the ordered monetary sanctions within the time specified in

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the court’s order. In his opposition to defendants’ motion, plaintiff’s counsel provides no

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explanation for his failure to pay the monetary sanctions. At the continued hearing, plaintiff’s

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counsel explained his failure to timely pay the sanctions award by telling the court he has no

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control over his law firm’s processing of checks. As to discovery, plaintiff’s counsel states that

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he has complied with the court’s November 20, 2018, order because he produced the

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outstanding discovery. Plaintiff’s counsel does not address the deficiencies in his written

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responses identified in defendants’ counsel’s emails, nor does counsel provide the court with

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copies of his discovery responses. Further, while plaintiff’s counsel repeatedly represented to

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the court that he has provided defendants’ counsel will all requested documents, plaintiff’s

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counsel was not able to identify a single document allegedly produced and defendants’ counsel

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stated unequivocally that they have not to date received a single responsive document from

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plaintiff’s counsel.

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The court finds plaintiff’s counsel failed to comply with either the November 20,

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2018, or December 20, 2018, orders. Therefore, a further sanction is appropriate. The court

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must weigh five factors before imposing the harsh sanction of dismissal. See Bautista v. Los

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Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal Service, 833 F.2d 128,

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130 (9th Cir. 1987). Those factors are: (1) the public's interest in expeditious resolution of

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litigation; (2) the court's need to manage its own docket; (3) the risk of prejudice to opposing
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parties; (4) the public policy favoring disposition of cases on their merits; and (5) the availability

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of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per

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curiam). A warning that the action may be dismissed as an appropriate sanction is considered a

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less drastic alternative sufficient to satisfy the last factor. See Malone, 833 F.2d at 132-33 & n.1.

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The sanction of dismissal for lack of prosecution is appropriate where there has been

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unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal

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has also been held to be an appropriate sanction for failure to follow local rules, see Ghazali, 46

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F.3d at 53, failure to comply with an order to file an amended complaint, see Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992), failure to inform the district court and parties of a change

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of address pursuant to local rules, see Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per

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curiam), failure to appear at trial, see Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996),

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and discovery abuses, see Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993).

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Having considered these factors, the court finds dismissal is an appropriate

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sanction. As to the first and fourth factors, the public’s interest in expeditious resolution of this

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matter on the merits is thwarted by plaintiff’s counsel’s failure to meaningfully participate in

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discovery and by violation of the court’s orders. As to the second factor, counsel’s failure to

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provide discovery and move this case forward to trial thwarts the court’s ability to manage its

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caseload and provide for the efficient administration of justice. As to the third factor, plaintiff’s

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counsel’s disobedience of the court’s orders to provide discovery prejudices defendants’ ability

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to present a defense, particularly given that discover has now closed in this action. Finally, as

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to the fifth factor, it is clear in this case that imposition of less drastic sanctions, such as a

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monetary sanction, will not produce compliance from plaintiff’s counsel.

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III. CONCLUSION

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Based on the foregoing, the undersigned recommends that:

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Defendants’ motion for terminating sanctions (ECF No. 20) be granted;

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Defendants’ alternative request for additional monetary sanctions be

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This action be dismissed, without prejudice, for failure to comply with

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denied; and

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courts orders.

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These findings and recommendations are 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 14 days

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after being served with these findings and recommendations, any party may file written objections

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with the court. Responses to objections shall be filed within 14 days after service of objections.

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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 25, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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