Ponce v. CalEnergy Operating Corporation et al

Filing 49

ORDER: (1) Adopting Report and Recommendation 47 ; (2) Imposing Terminating Sanctions and Dismissing Case with Prejudice; and (3) Declining to Impose Additional Monetary Sanctions. Signed by Judge Thomas J. Whelan on 5/8/2024. (All non-registered users served via U.S. Mail Service)(exs)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ALBERTO PONCE, Plaintiff, 14 15 v. 16 CALENERGY OPERATING CORPORATION, et al., 17 18 Case No.: 22-cv-1808-W-LR ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [47]; (2) IMPOSING TERMINATING SANCTIONS AND DISMISSING CASE WITH PREJUDICE; AND (3) DECLINING TO IMPOSE ADDITIONAL MONETARY SANCTIONS Defendants. 19 20 21 22 On October 20, 2022, plaintiff Alberto Ponce (“Plaintiff”) filed this case in 23 Imperial County Superior Court against his former employer, CalEnergy Operating 24 Corporation (“Defendant”). ([Doc. 1-2], “Complaint”.) On November 17, 2022, 25 Defendant removed the case to this Court. 26 Subsequently, the Honorable Lupe Rodriguez, Jr., United States Magistrate Judge 27 (“Magistrate Judge”), entered a scheduling order setting the fact discovery cutoff for July 28 28, 2023. ([Doc. 10], “Scheduling Order” at 3.) However, two days before the discovery 1 22-cv-1808-W-LR 1 cutoff date, the parties filed (and the Magistrate Judge granted) a joint motion extending 2 the discovery cutoff date in order to allow Plaintiff’s deposition to be taken on or before 3 August 31, 2023. ([Docs. 24 and 25].) On August 28, 2023, the parties again filed (and 4 the Magistrate Judge granted) another joint motion extending the discovery cutoff date to 5 allow Plaintiff’s deposition to be taken on September 20, 2023. ([Docs. 28 and 29].) 6 On October 3, 2023, Plaintiff’s counsel filed an ex parte motion to withdraw, 7 citing an inability to contact his client. ([Doc. 30], “Motion to Withdraw” at 1.) This 8 Court denied the Motion to Withdraw, as nothing in the Motion demonstrated that 9 counsel had even attempted to inform Plaintiff of his plan to withdraw in advance of the 10 11 fast-approaching October 20, 2023 discovery conference. ([Doc. 33].) At the discovery conference, Plaintiff’s counsel reiterated to the Magistrate Judge 12 that he had still been unable to contact his client. ([Doc. 47], “Report and 13 Recommendation” or “Report” at 3.) Defendant thereinafter filed a motion to compel 14 Plaintiff to appear for his deposition and for sanctions, which Plaintiff’s counsel did not 15 oppose. (See [Doc. 36].) On November 13, 2023, the Magistrate Judge granted the 16 motion to compel in part, ordering Plaintiff to appear for his deposition by December 15, 17 2023 and to pay Defendant $3,503 for the costs incurred by Defendant as a result of 18 Plaintiff’s failure to appear. ([Doc. 37] at 8.) The Magistrate Judge also explicitly 19 warned Plaintiff that an additional failure to appear for his deposition would likely 20 subject him to additional sanctions under Federal Rule of Civil Procedure 37(b)(2), up to 21 and including terminating sanctions. (Id.) Plaintiff did not appear for his deposition by 22 December 15, 2023 and failed to pay this first set of monetary sanctions. (See Report at 23 4, 10.) 24 Accordingly, Defendant filed a motion for both terminating and monetary 25 sanctions pursuant to Federal Rule of Civil Procedure 37(b) and (d) because of Plaintiff’s 26 repeated failure to appear for his properly noticed depositions in violation of the 27 Magistrate Judge’s orders. ([Doc. 45], “Motion for Sanctions”.) Plaintiff’s counsel did 28 not oppose the Motion for Sanctions. (Report at 4.) On March 7, 2024, the Magistrate 2 22-cv-1808-W-LR 1 Judge issued its Report and Recommendation pursuant to 28 U.S.C 636(b)(1) and CivLR 2 72.1(c), wherein he recommended that the Court: (1) grant the Motion for Sanctions in 3 part, (2) dismiss the case with prejudice, and (3) decline to impose additional monetary 4 sanctions against Plaintiff. (Report at 11.) Additionally, the Magistrate Judge ordered 5 that any objections to his Report and Recommendation were due by March 21, 2024 and 6 that “failure to file objections within the specified time may waive the right to raise those 7 objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 8 Cir. 1988).” (Id.) 9 The deadline for the parties to file their objections to the Report has now passed no 10 objections have been filed, nor has there been a request for additional time in which to 11 file an objection. See 28 U.S.C.A. § 636 (“Within fourteen days after being served with a 12 copy, any party may serve and file written objections to such proposed findings and 13 recommendations as provided by rules of court.”); FED. R. CIV. P. 72(b)(2) (“Within 14 14 days after being served with a copy of the recommended disposition, a party may serve 15 and file specific written objections to the proposed findings and recommendations”). 16 A district court’s duties concerning a magistrate judge’s report and 17 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 18 Federal Rules of Civil Procedure (“Rule 72(b)”) and 28 U.S.C. § 636(b)(1). When no 19 objections are filed, the district court is not required to review the magistrate judge’s 20 report and recommendation de novo. E.g., United States v. Reyna-Tapia, 328 F.3d 1114, 21 1121 (9th Cir. 2003) (emphasis in original) (holding that 28 U.S.C. § 636(b)(1) “makes it 22 clear that the district judge must review the magistrate judge’s finding and 23 recommendations de novo if objection is made, but not otherwise.”); Wang v. Masaitis, 24 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (emphasis added) (“Of course, de novo review of 25 a R & R is only required when an objection is made to the R & R.”) (citing Reyna-Tapia, 26 328 F.3d at 1121); Ragudo v. Saul, 411 F. Supp. 3d 1125, 1129–30 (S.D. Cal. 2019) 27 (citations omitted) (“The district court need not review de novo those portions of an R&R 28 to which neither party objects.”); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 3 22-cv-1808-W-LR 1 2005) (“[N]either party has objected to the Report. Accordingly, the Court will adopt the 2 Report and Recommendation in its entirety.”). Instead, the Advisory Committee Notes to 3 Rule 72(b)’s 1983 amendments instruct “[w]hen no timely objection is filed, the court 4 need only satisfy itself that there is no clear error on the face of the record in order to 5 accept the recommendation.” See, e.g., Nevarez v. Godwin, 2023 WL 5674407, at *2 6 (S.D. Cal. Sept. 1, 2023); Benavidez v. Cnty. of San Diego, 2022 WL 617313, at *1 (S.D. 7 Cal. Mar. 2, 2022); Michael Louis W. v. Kijakazi, 2022 WL 2918613, at *1 (S.D. Cal. 8 July 25, 2022). 9 Having reviewed the Report, the Complaint, and the entire record in this case, the 10 Court finds that the Magistrate Judge’s Report is thorough, well-reasoned, and contains 11 no clear error. Accordingly, Court accepts the Magistrate Judge’s recommendation and 12 ADOPTS the Report [Doc. 47] in its entirety. For the reasons stated in the Report, which 13 is incorporated herein by reference, the Court GRANTS IN PART AND DENIES IN 14 PART the Motion for Sanctions [Doc. 45]; ORDERS this case DISMISSED WITH 15 PREJUDICE; and declines to impose additional monetary sanctions on Plaintiff 16 (however, the original monetary sanctions of $3,503 remain in place, see [Doc. 37] at 8). 17 The Clerk shall close the District Court case file. 18 IT IS SO ORDERED. 19 Dated: May 8, 2024 20 21 22 23 24 25 26 27 28 4 22-cv-1808-W-LR

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