Warne v. City and County of San Francisco et al

Filing 374

ORDER by Magistrate Judge Donna M. Ryu re: Defendants' Motion to Dismiss or in the Alternative to Compel Deposition; Request for Sanctions 323 . (dmrlc2, COURT STAFF) (Filed on 5/15/2018)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOEL JENNINGS WARNE, Plaintiff, 8 9 10 11 v. CITY AND COUNTY OF SAN FRANCISCO, et al., Case No. 16-cv-06773-DMR ORDER RE: DEFENDANTS’ MOTION TO DISMISS OR IN THE ALTERNATIVE TO COMPEL DEPOSITION; REQUEST FOR SANCTIONS Re: Dkt. No. 323 United States District Court Northern District of California Defendants. 12 13 14 15 16 17 Pro se Plaintiff Joel Jennings Warne (“Mr. Warne”) filed this action against the Regents of the University of California (the “Regents”), Dr. Andrea Gail Tenner, M.D. (“Tenner”), the City and County of San Francisco (“CCSF”), and Officer Steven D. Gomez (Star No. 2317) (“Gomez”), alleging federal and state law claims relating to the medical treatment he received at San Francisco General Hospital (“SFGH”) in August 2015. The Regents and Tenner now move to dismiss the entire action pursuant to Federal Rule of Civil Procedure 41(b) for Mr. Warne’s failure 18 to appear at his court-ordered deposition. [Docket No. 323]. They also request monetary 19 20 21 22 sanctions pursuant to Rule 37 in the amount of $6,186.90 for the reasonable attorneys’ fees and costs incurred as a result of Mr. Warne’s failure to appear. Alternatively, they move to compel Mr. Warne to appear for his deposition at a date and time of the court’s choosing. CCSF and Gomez join the motion and also request reasonable attorneys’ fees and costs in the amount of 23 $1,102.50. [Docket No. 325]. Mr. Warne opposes. [Docket Nos. 344-47, 351-52, 355]. The 24 court held a hearing on March 15, 2018. For the reasons stated below, and having carefully 25 26 27 28 considered the parties’ submissions and oral argument, the court grants the motion to dismiss, and dismisses this action under Federal Rule of Civil Procedure 37(b) for Mr. Warne’s failure to comply with three court orders to appear for his deposition. Defendants’ request for monetary 1 sanctions is denied. 2 I. 3 BACKGROUND Mr. Warne originally filed this lawsuit in San Francisco Superior Court on October 24, 4 2016. Compl. [Ex. 1] to Not. of Removal [Docket No. 1-1]. CCSF removed the action on 5 November 23, 2016, where it was assigned to the Honorable Jacqueline Scott Corley. According 6 to the operative Third Amended Complaint, Mr. Warne alleges that on August 8, 2015, he 7 admitted himself to SFGH for an adverse reaction to a medication. Third Amended Complaint 8 (“TAC”), ¶ 44 [Docket No. 142]. Upon admission to SFGH, he was subjected to inadequate 9 medical care by Tenner. Mr. Warne also alleges that he was forcibly detained, restrained in fourpoint restraints by county sheriffs, and was administered anti-psychotic medications by the 11 United States District Court Northern District of California 10 hospital staff, all against his will. TAC, ¶¶ 44-52. 12 As described in detail below, Judge Corley held a series of case management conferences 13 during which she carefully crafted a deposition schedule to accommodate Mr. Warne’s school 14 schedule and his desire to minimize trips to California from his home in Texas. Mr. Warne 15 responded to Judge Corley’s efforts to accommodate him by filing two motions to vacate the 16 scheduling orders, and proffering excuse after excuse to avoid appearing for his deposition. 17 Thus, at the August 31, 2017 case management conference, Judge Corley set a fact 18 discovery deadline of November 15, 2017 for the claims against CCSF and Gomez, and a 19 November 30, 2017 deadline for the claims against the Regents and Tenner, to which all parties 20 agreed. [Docket No. 170]; 8/31/17 Tx. at 3:20-5:22 [Docket No. 346-3]. The next day, Mr. 21 Warne filed an ex parte application to vacate the August 31, 2017 scheduling order for two 22 reasons. [Docket No. 171]. Mr. Warne first claimed that he did not understand what he agreed to 23 at the August 31, 2017 case management conference. Id. He next argued that he needed 24 additional time to complete his own discovery, and proposed extending the fact discovery deadline 25 to April 2018, and other deadlines to the Summer and Fall of 2018, in light of the completion of 26 his studies in April or May 2018 and his anticipated graduation date of August 2018. [Docket No. 27 171 at 3]; Ex. A (Proposed Schedule) [Docket No. 171-1]. 28 On September 7, 2017, Judge Corley granted Mr. Warne’s ex parte application in part and 2 1 extended the fact discovery deadline to January 15, 2018 to take into account Mr. Warne’s 2 scheduling issues. Order re: Ex Parte Application to Set Aside August 31, 2017 Scheduling Order 3 [Docket No. 181]. Judge Corley also ordered that Mr. Warne’s deposition [must] occur before the 4 end of December of 2017 in the [c]ourt’s jury room,” and that the parties “[must] work together to 5 schedule [Mr. Warne’s] deposition for when he is on school break in October, November, or 6 December.” Id. 7 In light of Judge Corley’s September 7, 2017 Order, and upon the parties’ agreement, the Regents and Tenner re-noticed Mr. Warne’s deposition for December 18, 2017. Hansen-Arenas 9 Decl., ¶¶ 5-6 [Docket No. 323-1], Ex. D (September 14, 2017 e-mail from Mr. Warne to Hansen- 10 Arenas re: Service of Process); Ex. E (Re-Notice of Taking Deposition of Plaintiff Joel Warne and 11 United States District Court Northern District of California 8 Request for Production of Documents). 12 Despite his original agreement, Mr. Warne subsequently objected to the December 18, 13 2017 date for his deposition. [Docket No. 191 at 9]. At the September 28, 2017 case management 14 conference, Judge Corley addressed Mr. Warne’s objection. 9/28/17 Tx. at 3:22 - 22:25 [Docket 15 No. 346-4]. She began the hearing by noting that she had moved the fact discovery deadline at 16 Mr. Warne’s request in order to accommodate his school schedule, and asked Mr. Warne for the 17 basis for his objection to the deposition date to which he had previously agreed. Id. at 4:1-5. Mr. 18 Warne explained that despite the fact that he had responded to all of Defendants’ discovery 19 requests, he had yet to receive discovery from them. Id. at 4:8-5:6. He also stressed that he was 20 not wealthy and could not afford to make multiple trips to San Francisco to conduct depositions, 21 and therefore requested that the depositions be scheduled so that he could complete them in one 22 trip if possible. Id. at 5:14-23. In order to minimize the number of trips Mr. Warne would have to 23 make to California, Judge Corley ordered that Mr. Warne’s deposition take place on January 3, 24 2018 at the San Francisco courthouse, to be followed by the depositions of Drs. Yeh, Tenner, and 25 Murphy on the January 4, 5, and 8, respectively. Order Re: Scheduling and Case Management 26 (“September 28, 2017 Scheduling Order”) [Docket No. 194 at 1:19-26]; 9/28/17 Tx. at 6:14-9:18. 27 Judge Corley also extended the fact discovery deadline to March 1, 2018. September 28, 2017 28 Scheduling Order at 2:25. 3 1 Less than two months later, on November 2, 2017, Mr. Warne once again moved to vacate 2 the deposition schedule and the fact discovery deadline. This time, Mr. Warne filed a 40-page 3 motion, along with a 10-page ex parte application regarding the same. [Docket Nos. 233, 234]. 4 Mr. Warne argued that he “could not appear to be deposed, or take depositions” in light of the 5 Defendants’ purported willful refusal to provide him with his requested discovery. [Docket No. 6 233 at 40:12-19]. He also asserted that to force him into depositions in January 2018 “would 7 cause [him] unreasonable expense, not only having to seek leave to conduct second depositions 8 based on documents previously withheld but fund the travel and lodgings necessary to conduct 9 those second depositions.” Id. at 40:20-23. Following his motion to vacate, Mr. Warne filed a motion to compel and motion for sanctions against Defendants, as well as numerous 11 United States District Court Northern District of California 10 administrative motions. See, e.g., [Docket Nos. 239, 241, 242, 252, 253, 254, 255, 274, 275]. 12 On December 7, 2017, Judge Corley held a case management conference and hearing 13 during which she addressed all of Mr. Warne’s motions. Order Following December 7, 2017 14 Hearing (“December 7, 2017 Order) [Docket No. 286]. Regarding Mr. Warne’s motion to vacate, 15 Judge Corley explained that she “set this deposition schedule to accommodate [Mr. Warne’s] 16 school schedule and so [she] set it when [he was] going to be on break from school,” and that she 17 was not going to move the March 1, 2018 fact discovery deadline. 12/7/17 Tx. at 19:6-10 [Docket 18 No. 346-7]. To that end, Judge Corley inquired when Mr. Warne would be available to come to 19 California to complete his deposition prior to March 1, 2018. Id. at 20:6-12. In response, Mr. 20 Warne continued to assert that he could not proceed with his deposition and the other witness 21 depositions because he lacked certain documentary discovery he claimed he needed for these 22 depositions. Id. at 21:13-24:12. Judge Corley instructed Mr. Warne that she would try to resolve 23 all the outstanding discovery issues to the extent possible during the hearing, but that, in light of 24 Mr. Warne’s past behavior, she could not accommodate his request to move the deposition 25 schedule yet again. Id. at 23:13-25:10. Therefore, Mr. Warne’s deposition remained set for 26 January 3, 2018. December 7, 2017 Order at 9:15. Judge Corley then spent nearly an hour and a 27 half addressing Mr. Warne’s discovery concerns. 12/7/17 Tx. at 27:24-64:11. She also gave Mr. 28 Warne the opportunity to file an additional 10-page letter brief by December 13, 2017 regarding 4 1 any remaining discovery disputes. December 7, 2017 Order at 9:7-10. At the December 7 hearing, Judge Corley warned Mr. Warne that his case would be 2 3 subject to dismissal for failure to prosecute if he did not appear at his deposition: 4 COURT: I’m going to issue an order. I gave you the opportunity -I’ve been sitting with you for nearly an hour and a half as I set forth on the record how we’ve accommodated your schedule and accommodated you not coming out here. This case is moving forward. I’m going to issue an order with those depositions. If you want them, you’ll come out. If your deposition is ordered to take place, I’m warning you now if you don’t come, your case will be subject to dismissal for a failure to prosecute. 5 6 7 8 9 12/7/17 Tx. at 64:18-65:2. Mr. Warne did not file an additional discovery letter brief by the December 13, 2017 10 United States District Court Northern District of California 11 deadline set by Judge Corley. Instead, he chose to file a motion to disqualify Judge Corley on 12 December 14, 2017. [Docket No. 294]. On December 15, 2017, Judge Corley denied Mr. Warne’s motion for disqualification, but 13 14 elected to recuse herself for reasons unrelated to the disqualification motion. [Docket No. 296]. 15 The matter was thereafter reassigned to the undersigned on December 15, 2017. [Docket No. 16 297]. 17 On December 18, 2017, Mr. Warne filed a motion to vacate the January 2018 depositions 18 until June 2018. [Docket No. 299]. This time, Mr. Warne argued that a family situation prevented 19 him from being in California in January 2018. As before, he also asserted that he lacked adequate 20 discovery to proceed with these depositions. He requested additional miscellaneous relief which 21 included rehearing and reconsidering a number of previously decided motions; permitting him to 22 amend his complaint to include previously-dismissed claims; and granting him leave to file a 23 Fourth Amended Complaint to allege new claims for fraud, concealment, and conspiracy based on 24 recently reviewed evidence. 25 On December 20, 2017, the court denied Mr. Warne’s motion to vacate the deposition 26 schedule. December 20, 2017 Order Reaffirming Case Management Deadlines and Deposition 27 Schedule, and Changing Location of January 2018 Depositions (“December 20, 2017 Order”) 28 [Docket No. 307]. The court explained that the current deposition schedule was the result of 5 1 considerable effort by Judge Corley to accommodate his school schedule and to prevent him from 2 having to make multiple trips to California. December 20, 2017 Order at 2:1-7 (citing Order Re: 3 Scheduling and Case Management at 1:19-21 [Docket No. 194]; Order Following December 7, 4 2017 Hearing [Docket No. 286] at 8:9-9:21). 5 The court found that Mr. Warne had not demonstrated good cause to vacate the scheduling 6 order. December 20, 2017 Order at 2:7-25. Regarding Mr. Warne’s family situation, the court 7 explained that Mr. Warne’s stated concern that he had to remain in Texas to protect his sister in 8 light of her plans to file for divorce from an abusive husband was not a reasonable basis to vacate 9 the scheduling order. The court noted that Mr. Warne would only be in California for a brief period of time for the depositions, and nothing in the record indicated that his sister had no option 11 United States District Court Northern District of California 10 other than to rely on Mr. Warne for shelter if she chose to file her divorce papers in early January 12 and her husband threatened her as a result. Id. at 2:8-19. 13 Regarding his purported need for additional discovery, the court reminded Mr. Warne that 14 Judge Corley had already spent an hour and a half at the December 7, 2017 hearing resolving the 15 same discovery concerns, and had granted him leave to file an additional 10 page brief setting 16 forth any remaining discovery issues, which he chose not to file. Id. at 20-25. 17 The court ordered that Mr. Warne’s January 3, 2018 deposition would proceed as 18 scheduled, along with the other noticed depositions, subject only to a change in the location of the 19 deposition to the Oakland federal courthouse. Id. at 2:26-3:3. The court warned Mr. Warne, as 20 Judge Corley previously had warned him, “that a failure to appear in violation of the Order 21 Following December 7, 2017 Hearing, as well as this order, may result in dismissal of his case for 22 failure to prosecute.” December 20, 2017 Order at 3:12-14. 23 Immediately following the issuance of the December 20, 2017 Order, Mr. Warne filed a 24 Declaration of Non-Appearance for January 2018 Depositions (“Declaration of Non- 25 Appearance”). [Docket No. 308]. In his declaration, he stated that he would not be appearing for 26 deposition or participating in the other scheduled depositions in January 2018, and that Defendants 27 should mitigate any deposition-related expenses by cancelling arrangements in order to avoid 28 incurring unnecessary costs. Declaration of Non-Appearance at ¶¶ 1, 7. On December 21, 2017, 6 1 he filed an administrative motion confirming once more that he would not be appearing at any of 2 the scheduled depositions, including his own. [Docket No. 310 at 1:26-2:7; 3:3-5] (explaining that 3 he notified Defendants at least three times that he would not be appearing for the scheduled 4 depositions and that Defendants should cancel all deposition-associated arrangements to avoid 5 incurring any unnecessary costs). Mr. Warne did not appear for his deposition on January 3, 2018. Joint Request to File 6 7 Motions [Docket No. 317] at 2; Order Regarding Upcoming Depositions and Joint Request to File 8 Motions (“Order Regarding Upcoming Depositions”) [Docket No. 318] at 2:2-3. In light of Mr. 9 Warne’s failure to appear, the court relieved Defendants and the other deponents of their responsibility to appear at the depositions scheduled that week. Order Regarding Upcoming 11 United States District Court Northern District of California 10 Depositions at 2:4-7, 14-15. On January 5, 2018, the Regents and Tenner filed this motion, in which CCSF and Gomez 12 13 join. [Docket Nos. 323, 325]. 14 II. 15 LEGAL STANDARD The Regents and Tenner move pursuant to Rule 41 to dismiss the action based on Mr. 16 Warne’s failure to comply with court orders requiring him to appear at his deposition. They also 17 move for monetary sanctions under Rule 37. 18 The U.S. Supreme Court has explained that the question of whether dismissal is 19 appropriate for non-compliance with a discovery order “depends exclusively upon Rule 37,” such 20 that “[t]here is no need to resort to Rule 41(b).” Societe Internationale Pour Participations 21 Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 207 (1958). The Court concluded 22 that the lower court erred in dismissing a complaint under Rule 41 and the court’s inherent power 23 for failure to provide discovery, because “Rule 37 provides more expansive coverage by 24 comprehending disobedience of production orders by any party.” Id. 25 The orders at issue here concern discovery matters and therefore fall under Rule 37, and 26 not Rule 41. Accordingly, the court will consider Defendants’ dismissal request under Rule 37. 27 See, e.g., Sanchez v. Rodriguez, 298 F.R.D. 460, 463 (C.D. Cal. 2014) (“The Magistrate is right 28 that where a party’s noncompliance with a discovery order is the asserted basis for dismissal as a 7 1 sanction, the court must employ the discovery-specific Rule 37 rather than relying on Rule 41(b), 2 the general rule governing involuntary dismissal, or on the court’s inherent authority, so long as 3 Rule 37 is up to the task.”) (quotation marks omitted). Federal Rule of Civil Procedure 37 authorizes the imposition of sanctions for discovery 4 5 violations, including a party’s failure to obey a court order to provide or permit discovery. Fed. R. 6 Civ. P. 37(b)(2)(A). Such sanctions may include ordering a party to pay the reasonable expenses, 7 including attorneys’ fees, caused by its failure to comply with the order or rule. Fed. R. Civ. P. 8 37(b)(2)(C). A court may also dismiss an action in whole or in part. Fed. R. Civ. P. 9 37(b)(2)(A)(v). In determining whether dismissal under Rule 37(b) is appropriate, the court must consider 10 United States District Court Northern District of California 11 the following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 12 court’s need to manage its dockets; (3) the risk of prejudice to [the party seeking sanctions]; (4) 13 the public policy favoring disposition of cases on their merits; and (5) the availability of less 14 drastic sanctions.” Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1056-57 (9th Cir. 1998) 15 (citation and internal quotation marks omitted). “[W]here a court order is violated, factors 1 and 16 2 support sanctions and 4 cuts against case-dispositive sanctions, so 3 and 5, prejudice and 17 availability of less drastic sanctions, are decisive.” Id. at 1057 (citing Adriana Int’l Corp. v. 18 Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). Because dismissal is such a severe sanction, the 19 court must also find that the plaintiff’s non-compliance is “due to willfulness, bad faith or fault.” 20 Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993) (citing Fjelstad v. Am. Honda Motor 21 Co., 762 F.2d 1334, 1337 (9th Cir. 1985)); Ct. Gen. Life Ins. Co. v. New Images of Beverly Hills, 22 482 F.3d 1091, 1096 (9th Cir. 2007) (same). 23 III. 24 DISCUSSION The Regents and Tenner contend that dismissal is appropriate because Mr. Warne failed to 25 appear at his court-ordered deposition, thereby violating three court orders. See September 2017 26 Scheduling Order; December 7, 2017 Order; December 20, 2017 Order. The court also repeatedly 27 cautioned Mr. Warne that his failure to appear at his deposition “may result in dismissal of his 28 case for failure to prosecute.” December 20, 2017 Order at 3:12-14; 12/7/17 Tx. at 64:18-65:2. 8 1 2 Notwithstanding these court orders and warnings, Mr. Warne did not appear. Mr. Warne does not dispute that he failed to appear for his court-ordered deposition, or that 3 his deposition was the subject of three court orders. Instead, he argues that dismissal is 4 inappropriate because he diligently prosecuted this case for over two years. Indeed, Mr. Warne 5 spends nearly 22 pages of his 25 page opposition discussing his prosecution of this case, including 6 the merits of his dismissed claims. Mr. Warne also contends that his failure to appear at his 7 January 3, 2018 deposition was not willful because (1) he had to remain in Texas due to a family 8 emergency involving his sister, and (2) the Regents and Tenner still have not produced certain 9 discovery that he believes is relevant to his deposition. A. Dismissal under Rule 37 11 United States District Court Northern District of California 10 Under Rule 37, the court first considers whether Mr. Warne’s noncompliance with the 12 three court orders was willful, before turning to the five factors to determine whether dismissal is 13 warranted. 14 15 1. Willfulness, Bad Faith, or Fault Mr. Warne contends that his noncompliance with the three court orders requiring him to 16 appear at his deposition was not willful because a family emergency involving his sister required 17 him to be in Texas until March 2018. 18 Conduct is willful, in bad faith, or the fault of the litigant under Rule 37 if it is not “outside 19 the control of the litigant.” See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 20 1217, 1233 (9th Cir. 2006) (“Disobedient conduct not shown to be outside the litigant's control 21 meets this standard.”) (citation and internal quotation marks omitted). 22 The court finds that Mr. Warne has exhibited a pattern of behavior that demonstrates a 23 willful intent to avoid appearing for his deposition. Mr. Warne made excuse after excuse to evade 24 or at least postpone this basic discovery obligation. He repeatedly complained that he could not 25 go forward with his deposition because Defendants had not produced adequate discovery. Judge 26 Corley thoroughly addressed these complaints and found them lacking. Mr. Warne also 27 repeatedly raised concerns about travel expenses and impacts on his educational schedule. Judge 28 Corley bent over backwards to accommodate these concerns. When the matter came before the 9 undersigned and the deposition date loomed large, Mr. Warne raised a new issue, but the 2 circumstances he cited to support his nonappearance amounted to a last-ditch effort to avoid the 3 court’s order. In late December, Mr. Warne claimed that he could not attend his January 3 4 deposition because his sister was planning to file for divorce in early January 2018, which could 5 potentially trigger a violent reaction by her abusive husband. Mr. Warne wanted to be present in 6 Texas in case he needed to protect her. As discussed in the December 20, 2017 Order, nothing in 7 the record demonstrates that Mr. Warne’s sister had no option other than to rely on Mr. Warne if, 8 in fact, she chose to file for divorce in early January 2018. December 20, 2017 Order at 2:8-19. 9 Indeed, the record shows that Mr. Warne’s mother had already planned to have his sister move in 10 with her. [Docket No. 299-2]. Moreover, Mr. Warne would only be away from Texas for a few 11 United States District Court Northern District of California 1 days to attend his deposition in California, as well as the other depositions that were scheduled for 12 his convenience to take place on the following days. 13 All three court orders were clear. It is undisputed that Mr. Warne understood that he had 14 to appear for his deposition on January 3, 2018, or face dismissal of his case. This also supports 15 the court’s finding of willfulness. See Handwerker v. AT & T Corp., 211 F.R.D. 203, 209 16 (S.D.N.Y. 2002) (“Non-compliance may be deemed willful when the court’s orders have been 17 clear, when the party has understood them, and when the party’s non-compliance is not due to 18 factors beyond the party’s control.”) (citation and internal quotation marks omitted). 19 20 2. Dismissal Factors Having found that Mr. Warne’s noncompliance was willful, the court now considers the 21 five dismissal factors. For the reasons discussed below, the court finds that the factors weigh 22 heavily in favor of dismissal. 23 The first two factors—“the public interest in expeditious resolution of litigation” and “the 24 court’s need to manage its docket”—relate to the “efficient administration of judicial business for 25 the benefit of all litigants with cases pending.” Nealey v. Transportacion Maritima Mexicana, 26 S.A., 662 F.2d 1275, 1279 (9th Cir. 1980). Both factors weigh in favor of dismissal here. By 27 disobeying three court orders and ultimately failing to appear for his deposition, Mr. Warne 28 significantly delayed the prosecution of this case. His pattern of behavior in avoiding his 10 1 deposition also resulted in the expenditure of considerable judicial time and resources. In this 2 way, Mr. Warne’s actions wasted “valuable time that [the Court] could have devoted to other . . . 3 criminal and civil cases on its docket.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 4 The third factor, “the risk of prejudice to the defendants,” also weighs in favor of dismissal. “In determining whether a defendant has been prejudiced, [courts] examine whether the 6 plaintiff’s actions impair the defendant’s ability to go to trial or threaten to interfere with the 7 rightful decision of the case.” Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987). 8 The court finds that Mr. Warne’s actions have prejudiced Defendants. The fact discovery deadline 9 was March 1, 2018, after Judge Corley extended it twice at Mr. Warne’s request. By continually 10 thwarting Defendants’ efforts to take his deposition, Mr. Warne hindered Defendants’ ability to 11 United States District Court Northern District of California 5 adequately and timely prepare their defense, and unreasonably delayed the progress of this case. 12 See Chih-Cheng Tsao v. Cty. of Los Angeles, Office of Assessor, No. CV 09-1268-JST CWX, 2011 13 WL 1532331, at *6 (C.D. Cal. Mar. 30, 2011), report and recommendation adopted sub nom. Chih 14 Cheng Tsao v. Cty. of Los Angeles, No. CV 09-1268 JST CWX, 2011 WL 1532014 (C.D. Cal. 15 Apr. 22, 2011) (finding third factor met; “Without the opportunity to obtain [the plaintiff’s] sworn 16 deposition testimony regarding the alleged factual basis for her claims, [the defendants]’ ability to 17 defend this action appropriately and efficiently has been impeded.”) (citing cases). 18 The fourth factor, “the public policy favoring disposition of cases on their merits,” weighs 19 against dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Public policy 20 favors disposition of cases on the merits. Thus, this factor weighs against dismissal.”). 21 However, the last factor, “the availability of less drastic alternatives,” weighs in favor of 22 dismissal. “In determining whether a district court has properly considered the adequacy of less 23 drastic sanctions before dismissing a party’s case, [the Ninth Circuit] consider[s] (1) whether the 24 district court explicitly discussed the feasibility of less drastic sanctions and explained why such 25 alternate sanctions would be inappropriate; (2) whether the district court implemented alternative 26 sanctions before ordering dismissal; and (3) whether the district court warned the party of the 27 possibility of dismissal before ordering dismissal.” Anheuser-Busch, Inc. v. Nat. Beverage 28 Distribs., 69 F.3d 337, 352 (9th Cir. 1995). A district court need not implement a less severe 11 1 sanction if it “reasonably conclude[s]” that a lesser sanction would be “pointless.” Hester v. 2 Vision Airlines, Inc., 687 F.3d 1162, 1170 (9th Cir. 2012) (citation and internal quotation marks 3 omitted)). 4 Having carefully considered the record, the court finds that a less severe sanction such as 5 ordering Mr. Warne (again) to appear at a deposition would not be feasible, and would in fact be 6 pointless under these circumstances. As discussed in detail above, Mr. Warne’s deposition has 7 been an ever-moving target due to his repeated efforts to avoid his discovery obligations. The 8 court made numerous attempts to accommodate his stated concerns. Notwithstanding these 9 accommodations, plus three court orders requiring him to appear at his deposition and two warnings that his case could be dismissed if he failed to appear, Mr. Warne chose not to show up. 11 United States District Court Northern District of California 10 In light of these facts, the court finds that it is highly unlikely that it could achieve compliance by 12 issuing yet another order compelling his attendance at a deposition. 13 This finding is buttressed by the fact that Mr. Warne has a history of disobeying court 14 orders in this case. For example, he has repeatedly filed documents without leave of court and has 15 contacted the court’s Courtroom Deputy via e-mail in violation of the court’s non-contact order. 16 See, e.g., [Docket Nos. 289, 322]. In light of Mr. Warne’s history of noncompliance with court 17 orders, the court concludes that issuing yet another court order that Mr. Warne is likely to disobey 18 would only further frustrate the progress of this case. 19 Mr. Warne received ample warning that dismissal was imminent. See Oliva v. Sullivan, 20 958 F.2d 272, 274 (9th Cir. 1992) (“The district judge has an obligation to warn the plaintiff that 21 dismissal is imminent.”); Ferdik, 963 F.2d at 1262 (“A district courts warning to a party that 22 failure to obey the courts order will result in dismissal can satisfy the ‘consideration of [less 23 drastic sanctions] requirement.”) (citation and internal quotation marks omitted). He received two 24 warnings from two judges that his failure to comply with court orders to appear at his deposition 25 on January 3, 2018 could result in dismissal of his case. 12/7/17 Tx. at 64:18-65:12; December 26 20, 2017 Order at 3:12-14. 27 28 In sum, although dismissal is a harsh sanction, the court concludes that no lesser sanction is appropriate given Mr. Warne’s repeated efforts to dodge his most fundamental discovery 12 1 obligation by refusing to appear for his deposition.1 The fact that Mr. Warne is self-represented 2 does not excuse him from compliance with court orders. See Gordon v. Cty. of Alameda, No. CV 3 06–02997–SBA, 2007 WL 1750207, at *5 (N.D. Cal. June 15, 2007) (“[P]ro se plaintiffs must 4 abide by the rules of discovery, and when they fail to do so in bad faith dismissal is warranted.”); 5 see also Sanchez, 298 F.R.D. at 470-73 (dismissing pro se prisoner’s action for failure to respond 6 to discovery and failure to comply with three court orders to respond to discovery); Valentine v. 7 Museum of Modern Art, 29 F.3d 47, 50 (2d Cir. 1994) (affirming dismissal of pro se plaintiff’s 8 action under Rule 37 due to the pro se plaintiff’s “sustained and willful intransigence in the face of 9 repeated and explicit warnings from the court that the refusal to comply with court orders to 10 appear for his deposition would result in the dismissal of his action”). United States District Court Northern District of California 11 In his opposition, Mr. Warne argues that his case should not be dismissed because (1) he 12 has diligently prosecuted it; (2) he is still owed discovery from the Regents and Tenner; and (3) 13 his claims are not frivolous. None are persuasive. First, Mr. Warne’s “diligence” in prosecuting this case extends only to those issues of 14 15 interest to him—the discovery to which he believes he is entitled. His efforts did not extend to 16 fulfilling a key discovery obligation he owes to Defendants, namely, appearing for his deposition. 17 In so doing, he effectively stalled the case in its infancy. As to Mr. Warne’s claim that the case should not be dismissed because he is still owed 18 19 1 20 21 22 23 24 25 26 27 28 Although the court finds that Rule 37 is the appropriate framework to analyze the motion to dismiss, the court notes that dismissal would also be appropriate under Rule 41 for failure to comply generally with court orders since the Rule 41 dismissal factors are the same as the Rule 37 dismissal factors. Federal Rules of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). “A Rule 41(b) dismissal must be supported by a showing of unreasonable delay.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (internal citation and quotation marks omitted). “[I]n order for a court to dismiss a case as a sanction [under Rule 41(b)], the district court must consider five factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.’” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). Dismissal is appropriate where “at least four factors support dismissal, . . . or where at least three factors ‘strongly’ support dismissal.” Yourish, 191 F.3d 990 (quoting Ferdik, 963 F.2d at 1263). “Although it is preferred, it is not required that the district court make explicit findings in order to show that it has considered these factors . . . .” Ferdik, 963 F.2d at 1261. Here, as discussed above, at least four of the five factors weigh in favor of dismissal. 13 1 discovery by Tenner and the Regents, Judge Corley addressed all of Mr. Warne’s complaints 2 about the purported lack of defense discovery at the December 7, 2017 Case Management 3 Conference. 12/7/17 Tx. at 27:24-64:11. To the extent there was the possibility of any remaining 4 discovery dispute, Judge Corley gave Mr. Warne an opportunity to file an additional 10 page letter 5 brief following the December 7, 2017 hearing. December 7, 2017 Order at 9:7-12. He chose not 6 to file such a brief and, as such, cannot now complain about allegedly unaddressed discovery 7 issues. Moreover, Mr. Warne does not explain why he needs the defense discovery in order to sit 8 for his own deposition. 9 10 United States District Court Northern District of California 11 Finally, Mr. Warne claims that his case is not frivolous. However, his refusal to sit for his deposition effectively thwarted the ability to assess whether his case has any merit. In sum, the court finds that Warne’s noncompliance with the three court orders requiring 12 him to appear at his deposition was willful, and that dismissal is warranted under these 13 circumstances pursuant to Rule 37. 14 B. Motion to Compel 15 The Regents and Tenner alternatively move to compel Mr. Warne to attend a deposition at 16 a date and time of the court’s choosing. This request is denied as moot. 17 C. Sanctions - Attorneys’ Fees and Costs 18 Rule 37 authorizes the imposition of sanctions including attorneys’ fees and costs caused 19 by a party’s failure to comply with the order or rule. Fed. R. Civ. P. 37(b)(2)(C). 20 Defendants collectively request an award of monetary sanctions in the amount of 21 $7,289.40 for reasonable attorneys’ fees and costs incurred as a result of Mr. Warne’s failure to 22 appear at his deposition. This amount includes appearance fees and costs for Mr. Warne’s non- 23 appearance, along with the fees and costs incurred in filing this motion. Mr. Warne argues that the 24 court should not award monetary sanctions because Defendants failed to mitigate their deposition- 25 related costs. According to Mr. Warne, he repeatedly warned Defendants that he was not going to 26 appear at his deposition on January 3, 2018 and advised them to mitigate their costs, such as by 27 cancelling the court reporter. Declaration of Non-Appearance, ¶¶ 1, 7; [Docket No. 310 at 1:26- 28 2:7; 3:3-5]. 14 Having carefully considered the record, and in light of the dismissal of Mr. Warne’s action 1 2 for failure to comply with the court’s discovery orders, the court denies Defendants’ request for 3 monetary sanctions. Further sanctions beyond dismissal of the case are not warranted here. 4 D. Miscellaneous Pending Motions and Requests 5 Pending before the court are Third Party Medical Board of California’s Motion to Quash 6 Subpoena [Docket No. 309], Mr. Warne’s letters requesting permission to file various motions and 7 to augment the record for appellate purposes [Docket Nos. 327, 328, 329, 337, 348, 366, 367], and 8 Mr. Warne’s administrative motion requesting relief from paragraph 5 of this court’s Standing 9 Order which requires all parties to submit chambers copies, and his request for an order that he may appear telephonically at all future appearances. [Docket No. 302]. Because the court 11 dismisses this action, it denies these motions and letters as moot. To the extent that Mr. Warne 12 wishes to augment the record for appellate purposes, he can file the appropriate motion with the 13 Ninth Circuit in accordance with the Ninth Circuit’s Local Rules after filing his appeal. 14 IV. 15 CONCLUSION In conclusion, the court grants the Regents and Tenner’s motion and dismisses this action 16 for failure to comply with three court orders to appear at his deposition. The Regents and 17 Tenner’s request to compel Mr. Warne’s deposition is denied as moot. Defendants’ request for 18 monetary sanctions is also denied. ______________________________________ Donna M. Ryu Ryu United States onna M. Judge Magistrate eD NO 23 DERED O OR IT IS S R NIA 22 Dated: May 15, 2018 RT 24 Judg ER 26 27 28 15 A H 25 FO 21 IT IS SO ORDERED. LI 20 S DISTRICT TE C TA RT U O S 19 UNIT ED United States District Court Northern District of California 10 N F D IS T IC T O R C

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?