Landry et al v. City and County of San Francisco et al

Filing 94

ORDER by Judge Samuel Conti granting 86 Motion for Sanctions (sclc1, COURT STAFF) (Filed on 4/9/2010)

1 2 3 4 5 6 7 8 9 10 MARCUS LANDRY AND DANIEL LANDRY, Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO; HEATHER FONG; FREDERICK SCHIFF; CALLAWAY, #360; McCALL, #901; PLAMA, #841; PERSONAL PROTECTIVE SERVICES; PETE RODRIGUEZ; RENE GARCIA; PAT YOUNG; JACK NYCE; GARNER, #186; K. McARTHUR; WONG, #2038; MARIANO, #2191; PARKER, #121; CATHEY, #1090; HALLISY, #794; RODRIGUEZ, #1976; JACKSON, #275 and DOES 1 to 100, Defendants. ) Case No. 08-3791 SC ) ) ORDER DISMISSING ACTION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I.

INTRODUCTION Now before the Court is a Motion for Terminating Sanctions or

in the Alternative for Issue and Further Monetary Sanctions ("Motion") submitted by Defendant City and County of San Francisco ("San Francisco"). Docket No. 86. Defendants Personal Protective

Services, Kevin McArthur, and Pete Rodriguez (collectively, "PPS") seek to join in the Motion. Docket No. 88 ("Joinder"). Plaintiffs

Marcus Landry and Daniel Landry ("Plaintiffs") have filed an Opposition. Docket No. 89. San Francisco and PPS have filed

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

replies.

Docket Nos. 91 ("PPS Reply"), 92 ("SF Reply").

The

parties appeared before the Court for a hearing on Friday, April 9, 2010. Having considered the submissions of all parties, as well as

the statements made at the hearing, the Court concludes that terminating sanctions are appropriate and GRANTS the Motion.

II.

BACKGROUND This Motion represents the last in a series of sanctions and

discovery-related orders issued against Plaintiffs and their counsel, Gregory Haynes ("Haynes"), during the course of this action. San Francisco first moved for sanctions against Plaintiffs

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

on May 20, 2009, on the grounds that "plaintiffs have refused to provide responses to defendants' interrogatories and document requests and have refused to provide their initial disclosures." Docket Nos. 23, 32. On June 18, 2009, Magistrate Judge James

("Judge James"), the magistrate judge to whom discovery issues in this matter have been referred, ordered Plaintiffs to provide initial disclosures and respond to the interrogatories by June 26, 2009, but denied without prejudice San Francisco's request for sanctions. Docket No. 39. Plaintiffs failed to comply with Judge

James' order, and failed to heed her rather explicit warning. On June 30, 2009, San Francisco indicated in a letter to Judge James that Plaintiffs had failed to meet the deadline for compliance, and renewed their motion for sanctions. Docket No. 41.

At some point, Plaintiffs did provide responses to Defendants' interrogatories, but in their responses, Plaintiffs refused to identify any incidents of arrest or detention besides those described in the Complaint. See Docket No. 75 ("Nov. 11, 2009

2

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

Letter") Exs. 1 ("M. Landry Responses") at 2, 2 ("D. Landry Responses") at 2-3.1 On July 30, 2009, Judge James issued an order

sanctioning Haynes in the amount of $1500 for his failure to comply with her previous order. 2. Docket No. 52 ("First Sanction Order") at Id. Per

Payment of the sanctions was due by August 20, 2009.

Defendants deposed Marcus Landry on September 29, 2009. Haynes' advice, Marcus Landry refused to answer a number of

questions related to his prior incidents of detention by police. See Nov. 11, 2009 Letter Ex. 3 ("M. Landry Dep. Excerpts") at 8188, 90-97. Similarly, on October 1, 2009, Daniel Landry was

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

deposed, and he refused to answer similar questions upon the advice of Haynes. Id. Ex. 4 ("D. Landry Dep. Excerpts") at 106-07.

On September 8, 2009, San Francisco indicated to Judge James that Haynes had still not paid the $1500 sanctions, and Judge James issued an Order to Show Cause. Docket Nos. 59, 61. The show-cause

hearing was held on October 8, 2009, and Judge James ordered that the sanctions increase by $100 per day for every day after November 12, 2009, that the sanctions remain unpaid. 8 Order"). Docket No. 70 ("Oct.

After the hearing, Haynes apparently engaged in an

altercation with counsel for San Francisco, Daniel Zaheer ("Zaheer"). The incident report from Federal Protective Services

("FPS") and the U.S. Marshal Field Report indicate that Haynes repeatedly shouted profanity at Zaheer and the Inspectors who were responding to the incident. Mot. Exs. 15 ("FPS Incident Report") When Haynes was asked

at 3, 6; 16 ("Marshal Field Report") at 3.

to leave, he "became assaultive towards the FPS officer," and was
1

It is not clear when Defendants received these responses. The responses bare the date of June 30, 2009. M. Landry Responses at 9; D. Landry Responses at 9. 3

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

"escorted out of the building without any physical contact." Incident Report at 3, 6.

FPS

Because of the various ongoing discovery disputes, on October 22, 2009, this Court vacated the trial date of January 11, 2010. Docket No. 74. On November 11, 2009, San Francisco filed another Nov. 11, 2009 Letter at 1. The

Motion to Compel with Judge James.

city sought interrogatory answers related to Plaintiffs' prior convictions, arrests, and police detentions, as well as answers to deposition questions on the same topics. Id.

While the latest motion to compel was pending before Judge James, this Court held a status conference on November 20, 2009. The Court questioned both Zaheer and Haynes about the altercation that occurred after the October 8, 2009 show-cause hearing,2 and informed them that the behavior of both attorneys was intolerable. See Docket No. 79 ("Minute Order"). The Court further informed the

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

parties that it would not allow additional fighting between the attorneys and ordered them to take any future disagreements directly to this Court for determination. Id. The parties were

explicitly warned that, should they fail to cooperate in the future, the Court would consider terminating sanctions. On December 28, 2009, Judge James granted San Francisco's most recent motion to compel, and ordered Plaintiffs to comply with the city's discovery requests related to Plaintiffs' prior convictions, arrests, and police detentions. Order").
2

Docket No. 83 ("Judge James'

Judge James also ordered Haynes to pay additional

The Court also received a written account of the incident from Haynes. Docket No. 80. Even if this incident is interpreted in the best possible light, it is clear that the attorneys, and Haynes in particular, acted in an inappropriate manner. 4

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

sanctions of $835.

Id.

Haynes did not comply.

Haynes has not

provided this Court with an explanation for his decision to flout Judge James' Order, however counsel for San Francisco has indicated that Haynes offered the following justification for his failure: Haynes claimed that this Court's November 20, 2009 Minute Order, which ordered the parties to bring their disputes to this court for ruling, deprived Judge James of her authority to rule upon the discovery dispute that was already pending before her. 84 ("Mot. for Clarification") at 1-2. argument to be specious. Docket No.

The Court finds this

If Haynes actually believed that this

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Court's Minute Order had cast any doubt of the legitimacy of Judge James' subsequent ruling, he failed to notify this Court of this belief, or to otherwise seek redress from the supposedly unauthorized order. He simply refused to provide the discovery

that Judge James had explicitly ordered him to provide. On February 3, 2010, this Court dispelled any basis for doubting the authority of Judge James' discovery order, by posting an order clarifying its earlier Minute Order. ("Clarification Order"). Docket No. 85

This Court stated that "[b]ecause Judge

James' Order addressed a dispute that was raised to her before this Court's Minute Order, Judge James' Order is to have full force and effect." Id. at 2. It added the following warning: "In light of

the previous friction addressed by this Court, the parties are reminded that the Court can and will issue sanctions, up to and including dismissal of this action, should the parties' misconduct and meritless disagreement continue." Id.

On the day that this Court posted the Clarification Order, Zaheer emailed Haynes with a suggested schedule for compliance with

5

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

Judge James' Order, as the original schedule had long since lapsed. Mot. Ex. 17. As far as this Court knows, Haynes did not provide a

response, and Plaintiffs have not provided the discovery that had been ordered by Judge James or by this Court.3 Id. Twenty-three

days later, on February 26, 2010, San Francisco filed the Motion for terminating sanctions that is now before this Court.

III. LEGAL STANDARD In addition to the explicit statutory authority codified by Rule 37(b) of the Federal Rules of Civil Procedure, "courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice." Wyle v. R.J. Reynolds

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983) (citing Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, 806 (9th Cir. 1982)). Inc., 682 F.2d 802,

In determining whether to issue terminating

sanctions, district courts must weigh the following five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. The sub-parts of the fifth factor are whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions. Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d
3

At the hearing, the Court confronted Haynes about an email in which he stated "I will not further respond." Haynes explained that this was not a response to Zaheer's email of February 3, 2010, but was in fact a response related to an earlier dispute with Zaheer. Nevertheless, Haynes did not indicate that he ever responded to Zaheer's reasonable request, and it remains undisputed that Plaintiffs have not complied with Judge James' Order. 6

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

1091, 1096 (9th Cir. 2007) (footnotes omitted).

"The list of

factors amounts to a way for a district judge to think about what to do, not a series of conditions precedent before the judge can do anything . . . ." Valley Eng'rs v. Electric Eng'g Co., 158 F.3d Nevertheless, terminating sanctions

1051, 1057 (9th Cir. 1998).

are only appropriate where "the losing party's noncompliance [is] due to willfulness, fault, or bad faith." Computer Task Group, v. Exxon Corp.,

Inc. v. Brotby, 364 F.3d 1112, 1115 (quoting Payne 121 F.3d 503, 507 (9th Cir. 1997)).

"Disobedient conduct not shown

to be outside the control of the litigant is sufficient to demonstrate willfulness, bad faith, or fault." Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). Hyde & Drath v.

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IV.

DISCUSSION Neither Plaintiffs' Opposition nor Haynes' statements at oral

arguments attempt to explain why Plaintiffs have failed to comply with Judge James' most recent discovery order, or with this Court's Clarification Order, which stated that Judge James' Order was to have full force and effect. Most of the Opposition focuses on

unrelated aspects of disputes that Haynes has had with Defendants' attorneys, including allegedly "false allegations" made by Defendants, the minutia of the apparent assault, details concerning unrelated conflicts with the city's other attorneys, and San Francisco's earlier reluctance to make a certain defense witness available for deposition by Haynes.4
4

None of this excuses

The Court is particularly dismayed by Plaintiffs' attempt to divert this Court's attention by making hay out of an incident at a deposition in which Zaheer allegedly "pushed [a] paper back at Mr. Landry, hitting him." Opp'n at 4. 7

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

Plaintiffs' noncompliance with Judge James' Order.

While Haynes'

repeated misconduct throughout this litigation serves to inform this Court regarding the severity of the sanction that is appropriate, and whether lesser sanctions may be futile, the current Motion addresses Plaintiffs' open and repeated refusal to comply with Judge James' Order of December 28, 2009, and this Court's later orders directing, in no uncertain terms, compliance with Judge James' Order. Plaintiffs have not offered any

satisfying basis for withholding sanctions for this willful violation. Plaintiffs have offered only limited discussion of Judge James' Order, and most of this discussion focuses on the merits of the Order, rather than Plaintiffs' noncompliance. Plaintiffs take

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

issue with "this letter" -- presumably the letter sent by San Francisco to Judge James on November 11, 2009, which sought to compel the discovery that was later directed in Judge James' Order. Opp'n at 5-6. Plaintiffs claim that there was no meet and confer

"prior to seeking forth his letter," and that there "is no information needed that has not been provided at the deposition." Id. at 5. However, Plaintiffs fail to establish that they have

ever supplied the information that they were ordered to provide. Moreover, Plaintiffs had the opportunity to address the merits of San Francisco's motion to compel months ago, according to the procedure for addressing discovery disputes that Judge James set out in her earlier order of October 8, 2009. 1. See Oct. 8 Order at

Plaintiffs' attempt to avoid sanctions by undermining the Judge James issued an

propriety of Judge James' Order must fail.

Order, and the Court sees no reason, either in the record or in any

8

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

of the flimsy or pretextual reasons now offered by Plaintiffs, for disturbing it. The Court now turns to the five-factor test outlined above to determine whether dismissal of this suit is an appropriate response to Plaintiffs' willful misconduct. Throughout this process, San

Francisco has continued to pursue, at public expense, information that is immediately relevant to the damage element of Plaintiffs' claims. Consideration of the public interest clearly favors swift

dismissal of this action, given that lesser sanctions will likely result in nothing more than additional delays, and additional public expense. This Court doubts that further prosecution of this Actions of

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

matter would be likely to result in a public benefit.

this nature can only serve the public when they are well founded and faithfully prosecuted, yet Plaintiffs' conduct suggests that they have little interest in seeing justice done. Plaintiffs'

chronic refusal to pursue this matter in good faith, and their open defiance of multiple court orders, cast doubt on their motivation for pursuing this litigation. Consideration of the public interest

therefore weighs in favor of dismissal. Consideration of this Court's docket also weighs in favor of dismissal. As San Francisco points out, "48 of this cases' 85

docket items have concerned plaintiffs' and plaintiffs' counsel's misconduct." Mot. at 7. Plaintiffs' bad-faith refusal to

cooperate with Defendants' discovery requests, and to comply with this Court's discovery orders, has wasted too much of the Court's time and resources. The trial in this matter was scheduled to

occur last January, and has been delayed because of the continuing discovery disputes and the inability of the parties -- particularly

9

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

Plaintiffs -- to cooperate. dismissal.

This factor weighs in favor of

The Court finds that Defendants would be prejudiced by a failure to issue sanctions in this instance. San Francisco has

continued to seek information that is immediately relevant to its defense in this matter. Plaintiffs' failure to provide this

information undermines Defendants ability to disprove one or more of Plaintiffs' theories of damages. Moreover, "[w]here counsel

continues to disregard deadlines, warnings, and schedules set by the district court, . . . a lack of prejudice to defendants is [not] determinative." (9th Cir. 1986). Henderson v. Duncan, 779 F.2d 1421, 1425

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

This Court has repeatedly and unambiguously

ordered Plaintiffs to produce the requested information, and Plaintiffs have openly flouted this Court's direction. At this In this

point, "the integrity of the district court is involved.

case, the district court did warn explicitly of the consequences of counsel's dilatory behavior, and imposed a schedule for discovery. . . ." Id. Even in the absence of prejudice to Defendants,

dismissal would be warranted. As for "the public policy favoring disposition of cases on their merits," this factor inherently disfavors dismissal. Nevertheless, any interest in resolving this dispute on the merits is undermined by Plaintiffs' failure to cooperate to ensure that resolution on the merits will be based on a full record containing all relevant facts. Plaintiffs, and Haynes in particular, have already faced multiple orders compelling production and issuing lesser sanctions. They have been warned that they would face dismissal should their

10

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

noncompliance continue.

Yet Plaintiffs continue to fail to

cooperate with Defendants' discovery requests in good faith, even when repeatedly ordered to do so. Judge James previously See

considered and tried lesser monetary sanctions against Haynes. First Sanction Order at 2; Judge James Order at 2.

Haynes failed

to pay the first sanctions on time, and other monetary sanctions remain outstanding. Plaintiffs' "compliance" with prior discovery See M. Landry Responses

orders has been blatantly nonresponsive. at 2; D. Landry Responses at 2-3.

This Court has warned Plaintiffs

that their conduct could lead to terminating sanctions, not once, but on two separate occasions. Order at 2. See Minute Order; Clarification

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In this case, the threat and efficacy of less drastic Upon consideration of all

sanctions has proven to be negligible.

factors, the relevant facts of this case, and the history of the attorneys' conduct in this matter, the Court concludes that dismissal is appropriate.

V.

CONCLUSION The Court finds that Plaintiffs have willfully defied the

orders of Judge James and of this Court.

The repeated and

continuous nature of the misconduct, as well as the unprofessional conduct of Haynes, fail to demonstrate even the modest levels of civility necessary to carry a civil matter to trial. The monetary

sanctions ordered by Judge James in her order of December 28, 2009, remain outstanding. The Court therefore concludes that terminating

sanctions are now appropriate. The Court notes that Plaintiffs themselves have not been especially cooperative throughout the prosecution of this matter,

11

1 2 3 4 5 6 7 8 9 10
For the Northern District of California

although their refusal to cooperate during depositions was based at least in part upon the advice of Haynes. Nevertheless, this

dismissal is based primarily upon the repeated misconduct of Haynes. To the extent that this misbehavior was outside of their

control, Plaintiffs may have other avenues for seeking remedies against their attorney, should they wish to pursue them. matter is DISMISSED WITH PREJUDICE. This

IT IS SO ORDERED.

United States District Court

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated: April 9, 2010 UNITED STATES DISTRICT JUDGE

12