Fahy v. Tarbox et al

Filing 174

ORDER by Magistrate Judge Donna M. Ryu denying 151 Motion to Dismiss; granting Motion for an Order that Plaintiff Complete His Deposition; and granting 152 Motion for Sanctions. (dmrlc1, COURT STAFF) (Filed on 4/18/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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FRANK FAHY,

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Plaintiff,
v.

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ORPHEOS TARBOX, et al.,

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Defendants.
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No. C-09-01420 MMC (DMR)
ORDER DENYING DEFENDANT CITY
AND COUNTY OF SAN FRANCISCO’S
MOTION TO DISMISS, GRANTING
MOTION FOR AN ORDER THAT
PLAINTIFF COMPLETE HIS
DEPOSITION, AND GRANTING
MOTION FOR SANCTIONS

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Before the Court is Defendant City and County of San Francisco’s Motion to Dismiss, or

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Alternatively For an Order that Plaintiff Frank Fahy Complete His Deposition and Motion for

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Sanctions. See Docket Nos. 151, 152. The Court conducted a hearing on April 14, 2011, during

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which the parties were given an opportunity to present their arguments. This Order summarizes the

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rulings made by the Court on the record during the April 14, 2011 hearing.

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I. DEFENDANT’S MOTION TO DISMISS OR FOR AN ORDER
THAT PLAINTIFF COMPLETE HIS DEPOSITION

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Defendant City and County of San Francisco’s (“Defendant” or “City”) seeks dismissal of

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pro se Plaintiff Frank Fahy’s action pursuant to Federal Rule of Civil Procedure 37(d), which

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authorizes dismissal of an action for a party’s failure to attend his or her own deposition, on the

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grounds that Plaintiff appeared for but failed to cooperate in completing his deposition on three

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occasions. Defendant’s Motion to Dismiss is DENIED.

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“Because the sanction of dismissal is such a harsh penalty, the district court must weigh five

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factors before imposing dismissal: (1) the public’s interest in expeditious resolution of litigation; (2)

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the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4)

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the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.” Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993) (citing Porter v. Martinez,

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941 F.2d 732, 733 (9th Cir. 1991)). “The first two of these factors favor the imposition of sanctions

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in most cases, while the fourth cuts against a . . . dismissal sanction. Thus the key factors are
prejudice and the availability of lesser sanctions.” Id. (citing Wanderer v. Johnston, 910 F.2d 652,

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For the Northern District of California

United States District Court

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656 (9th Cir. 1990)).

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The third factor, prejudice to the moving party, “looks to whether [a party’s] actions

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impaired [the moving party’s] ability to go to trial or threatened to interfere with the rightful

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decision of the case.” United States ex rel. Wiltec Guam, Inc. v. Kahaluu Const. Co., Inc., 857 F.2d

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600, 604 (9th Cir. 1988). The fifth factor requires the court to consider “the impact of the sanction

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and the adequacy of less drastic sanctions.” Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406,

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1412-1413 (9th Cir. 1990).

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Here, the third, fourth, and fifth factors do not support dismissal of Plaintiff’s complaint at

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this time. With respect to the third factor, the main prejudice the City argues it has suffered is delay.

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The City also claims that Plaintiff’s refusal to complete his deposition prevented them from moving

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for summary judgment. While it is true that Plaintiff’s conduct has delayed potential resolution of

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this case, Defendant has not been precluded from moving for summary judgment given that the

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dispositive motion deadline is July 1, 2011. See Docket No. 143 (Amended Pretrial Order). Further,

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as discovery is still open, Plaintiff’s actions have not adequately interfered “with the rightful

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decision of the case” to justify dismissal at this time. See Wanderer v. Johnston, 910 F.2d 652, 656

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(9th Cir. 1990) (“Delay alone, without a focus on its effects, will not justify dismissal or default.”).

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With respect to the fifth factor, the Court is not convinced at this time that less drastic

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sanctions would not be adequate. In addition to the present Motion to Dismiss, the City seeks

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sanctions in the amount of $4,710 against Plaintiff. As set forth in Sections II and III in this Order,

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the Court orders Plaintiff to pay a portion of the $4,710 sought by Defendant as sanctions, and

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orders Plaintiff to complete his deposition on April 19, 2011, which is before the discovery deadline.

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The Court is holding in abeyance the question of whether Plaintiff will be sanctioned further,

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pending the timely completion of Plaintiff’s deposition. Any failure by Plaintiff to cooperate in

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completing his deposition may indeed demonstrate that lesser sanctions are inadequate, and the City

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may suffer prejudice if Plaintiff fails to cooperate in completing his deposition before the discovery

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deadline, potentially justifying dismissal. Therefore, Plaintiff is hereby on notice that he may be

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sanctioned further and his case may be dismissed if he does not comply with this Order and fully
cooperate in completing his deposition.

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For the Northern District of California

United States District Court

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II. MOTION FOR AN ORDER THAT PLAINTIFF COMPLETE HIS DEPOSITION

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Defendant’s Motion for an Order that Plaintiff Complete his Deposition is GRANTED.

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Plaintiff is ordered to appear for and complete his deposition by the City on April 19, 2011 at 10:00

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a.m. at the office of the City Attorney. The deposition shall not exceed three (3) hours. While

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attending his deposition, Plaintiff must comply with the office’s reasonable security procedures,

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including signing in on the visitor’s log and wearing a visitor’s identification sticker. Plaintiff may

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remove the visitor’s identification sticker whenever he is being videotaped and on the record during

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the deposition. Plaintiff shall state any objections for the record simply and clearly, and after

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lodging any such objections, Plaintiff must answer the question unless it calls for attorney-client

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privileged communications. Any refusal by Plaintiff to answer a question asked by the City must be

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substantially justified or Plaintiff may be sanctioned.

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If the City concludes that it needs more than three (3) hours to complete Plaintiff’s

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deposition due to unnecessary dialogue or arguments by Plaintiff on the record, the City may request

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the Court issue an order authorizing additional time. By no later than April 21, 2011, the City shall

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serve and file a letter to the Court reporting on the status of Plaintiff’s deposition.

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III. MOTION FOR SANCTIONS

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The Court concludes that Plaintiff’s failure to cooperate with Defendant’s attempts to

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complete his deposition on December 17, 2010 and March 8, 2011 was not substantially justified.

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Although Plaintiff is self-represented, he has a law degree and practiced as an attorney for a number

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of years. He is aware of the obligations of a litigant to participate in good faith in discovery

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proceedings. He left the December 17, 2010 deposition without justification after twenty minutes.

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He showed up for the March 8, 2011 deposition, but raised spurious objections that triggered a

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cancellation of the proceedings. Therefore, Defendant’s Motion for Sanctions is GRANTED in part.

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Defendant seeks $4,710 in sanctions. At this time, the Court orders Plaintiff to pay the City $510,

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which is the amount of the costs incurred by the City for retaining a court reporter on each of those

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two dates. Plaintiff provided evidence that he has limited financial resources. For this reason,

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Plaintiff may elect to pay the amount due the City in two installments of $255. The first installment

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whether Plaintiff will be ordered to pay the balance or a portion of the balance of the total amount of

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sanctions sought by the City in abeyance pending the timely completion of Plaintiff’s deposition.

UNIT
ED

Dated: April 18, 2011

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D

RDERE

OO
IT IS S

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onna
Judge D

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M. Ryu

FO

DONNA M. RYU
United States Magistrate Judge

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LI

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S

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S DISTRICT
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IT IS SO ORDERED.

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For the Northern District of California

shall be paid by May 15, 2011, and the second by June 15, 2011. The Court holds the question of

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United States District Court

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