Tindle et al v. City of Daly City et al

Filing 203

ORDER by Judge Haywood S. Gilliam, Jr. ADOPTING MAGISTRATE JUDGES 196 REPORT AND RECOMMENDATION RE: SAHLEEM TINDLES REPEATED FAILURE TO APPEAR FOR HIS DEPOSITION, AND DISMISSING CASE. (Terminating 191 , 195 Motions). (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 10/17/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SAHLEEM TINDLE, et al., Plaintiffs, 8 v. 9 10 CITY OF DALY CITY, et al., Defendants. United States District Court Northern District of California 11 Case No. 13-cv-02449-HSG ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION RE: SAHLEEM TINDLE’S REPEATED FAILURE TO APPEAR FOR HIS DEPOSITION, AND DISMISSING CASE Re: Dkt. No. 196 12 The Court has reviewed Magistrate Judge Ryu’s report and recommendation regarding 13 14 Plaintiff Sahleem Tindle’s repeated failure to appear for his deposition, as well as the objections of 15 Plaintiff Yolanda Banks-Reed and the reply of Defendants City of Daly City, Officer Shane Hart, 16 and Officer Mario Busalacchi (together, “Defendants”). See Docket Nos. 196, 200 & 202. The 17 Court finds the report to be well-reasoned, thorough, and correct. Accordingly, the Court adopts 18 the report’s recommendation that Mr. Tindle’s claims be dismissed as a sanction for failure to 19 prosecute. Because no federal claim remains in the case after the dismissal of Mr. Tindle’s claims, 20 the Court declines to exercise supplemental jurisdiction over the claims of Plaintiffs Yolanda 21 Banks-Reed, Kevin Reed, minor R.R., Ciara Turner and minor I.T. (together, “Remaining 22 Plaintiffs”), and dismisses those claims without prejudice. 23 24 I. THE COURT IS NOT PERSUADED BY THE OBJECTION TO THE REPORT Mr. Tindle did not object to the report, and the objection filed by Ms. Banks-Reed is not 25 persuasive. Without citing the record, Ms. Banks-Reed contends that Defendants have exploited 26 Tindle’s alleged Post-Traumatic Stress Disorder (“PTSD”) “by repeatedly postponing . . . 27 [Tindle’s] depositions and then rescheduling them for a later date.” See Dkt. No. 200 (original 28 emphasis). This claim simply is not consistent with the long record in this case: Judge Ryu’s 1 report and the underlying docket detail the repeated instances on which Mr. Tindle failed to appear 2 for his deposition, in violation of multiple orders of the Court. See Docket No. 196. Moreover, 3 Mr. Tindle has submitted no medical documentation that he suffers from PTSD, despite multiple 4 warnings from the Court that he must do so if he claims that his condition prevented him from 5 appearing for his deposition. See Dkt. No. 196, at 2:5-6 (citing Dkt. No. 116); id., at 3:14-17 6 (citing Dkt. No. 164); id., at 4:16-17. In light of Judge Ryu’s extraordinarily patient and fair 7 approach, which gave Mr. Tindle repeated opportunities over a period of nearly a year to 8 substantiate this claim, the Court is not persuaded by Ms. Banks-Reed’s current assertion that “we 9 are attempting to obtain the complete and most comprehensive medical records” relating to Tindle’s alleged diagnosis. See Dkt. No. 200. As early as December 11, 2015, Plaintiffs declined 11 United States District Court Northern District of California 10 to submit the mental health assessment at Judge Ryu’s invitation, and instead stated that Mr. 12 Tindle would appear for his deposition. See Dkt. No. 196, at 2:7-8 (citing Dkt. No. 120). 13 Considering the ample opportunities Mr. Tindle has been given to substantiate any claim 14 regarding his condition, and his repeated noncompliance with Court orders, the Court agrees with 15 Judge Ryu that dismissal of his claims is fair and appropriate. 16 In addition, Ms. Banks-Reed argues that “ALL the other plaintiffs have been at all relevant 17 times ready, willing, and available to continue moving forward.” Dkt. No 200. But this has been 18 another recurring problem in the case: as Judge Ryu has ordered, Defendants are entitled to take 19 Mr. Tindle’s pivotal deposition first, and are not required to defer to Plaintiffs’ preferred order of 20 proceeding. Dkt. No. 155 at 4. In essence, Plaintiffs argue that they should be allowed to 21 sequence the depositions as they choose, rather than follow Judge Ryu’s orders. The Court 22 obviously disagrees: Mr. Tindle’s failure to comply with Judge Ryu’s repeated orders has 23 unacceptably delayed this case and made an orderly and timely resolution of the claims 24 impossible. Plaintiffs’ preference to have other witnesses deposed before Mr. Tindle in no way 25 mitigates these facts. 26 27 Accordingly, the Court accepts Judge Ryu’s report and recommendation, and DISMISSES Mr. Tindle’s claims. 28 2 1 II. THE COURT DECLINES SUPPLEMENTAL JURISDICTION OVER THE STATE LAW CLAIMS OF THE REMAINING PLAINTIFFS 2 A district court may decline to exercise supplemental jurisdiction if it has dismissed all 3 claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); Sanford v. MemberWorks, 4 Inc., 625 F.3d 550, 561 (9th Cir. 2010). “[I]n the usual case in which all federal-law claims are 5 eliminated before trial, the balance of factors to be considered under the pendent jurisdiction 6 doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to 7 exercise jurisdiction over the remaining state-law claims.” Id. at 561 (quotation marks and citation 8 omitted). 9 The Court has dismissed Mr. Tindle’s claims, including his section 1983 claim (which was 10 the sole federal claim in this case). The Court thus lacks original jurisdiction over the claims of United States District Court Northern District of California 11 the remaining Plaintiffs, who allege only state tort claims. See Dkt. No. 1 (“Compl.”) ¶¶ 56-58 12 (alleging claims for negligent infliction of emotional distress). The Court declines in its discretion 13 to assert supplemental jurisdiction over these purely state law claims and dismisses them without 14 prejudice. See 28 U.S.C. § 1367(c)(3); Sanford, 625 F.3d at 561 (holding that district court acted 15 within its discretion in declining to exercise supplemental jurisdiction over pendent state law 16 claims after granting motion to dismiss all federal claims). 17 18 III. CONCLUSION For the reasons set out above and in Judge Ryu’s Report and Recommendation, the Court 19 DISMISSES the claims of Plaintiff Sahleem Tindle for failure to prosecute. The Court declines 20 to exercise supplemental jurisdiction over the remaining claims of Plaintiffs Yolanda Banks-Reed, 21 Kevin Reed, minor R.R., Ciara Turner, and minor I.T., and DISMISSES those claims without 22 prejudice. The Clerk is directed to close the file. 23 IT IS SO ORDERED. 24 25 26 27 Dated: 10/17/2016 ______________________________________ HAYWOOD S. GILLIAM, JR. United States District Judge 28 3

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