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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERTO PONCE,
Plaintiff,

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v.

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CALENERGY OPERATING
CORPORATION, et al.,

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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.

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On October 20, 2022, plaintiff Alberto Ponce (“Plaintiff”) filed this case in

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Imperial County Superior Court against his former employer, CalEnergy Operating

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Corporation (“Defendant”). ([Doc. 1-2], “Complaint”.) On November 17, 2022,

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Defendant removed the case to this Court.

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Subsequently, the Honorable Lupe Rodriguez, Jr., United States Magistrate Judge

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(“Magistrate Judge”), entered a scheduling order setting the fact discovery cutoff for July

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28, 2023. ([Doc. 10], “Scheduling Order” at 3.) However, two days before the discovery
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cutoff date, the parties filed (and the Magistrate Judge granted) a joint motion extending

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the discovery cutoff date in order to allow Plaintiff’s deposition to be taken on or before

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August 31, 2023. ([Docs. 24 and 25].) On August 28, 2023, the parties again filed (and

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the Magistrate Judge granted) another joint motion extending the discovery cutoff date to

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allow Plaintiff’s deposition to be taken on September 20, 2023. ([Docs. 28 and 29].)

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On October 3, 2023, Plaintiff’s counsel filed an ex parte motion to withdraw,

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citing an inability to contact his client. ([Doc. 30], “Motion to Withdraw” at 1.) This

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Court denied the Motion to Withdraw, as nothing in the Motion demonstrated that

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counsel had even attempted to inform Plaintiff of his plan to withdraw in advance of the

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fast-approaching October 20, 2023 discovery conference. ([Doc. 33].)
At the discovery conference, Plaintiff’s counsel reiterated to the Magistrate Judge

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that he had still been unable to contact his client. ([Doc. 47], “Report and

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Recommendation” or “Report” at 3.) Defendant thereinafter filed a motion to compel

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Plaintiff to appear for his deposition and for sanctions, which Plaintiff’s counsel did not

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oppose. (See [Doc. 36].) On November 13, 2023, the Magistrate Judge granted the

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motion to compel in part, ordering Plaintiff to appear for his deposition by December 15,

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2023 and to pay Defendant $3,503 for the costs incurred by Defendant as a result of

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Plaintiff’s failure to appear. ([Doc. 37] at 8.) The Magistrate Judge also explicitly

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warned Plaintiff that an additional failure to appear for his deposition would likely

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subject him to additional sanctions under Federal Rule of Civil Procedure 37(b)(2), up to

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and including terminating sanctions. (Id.) Plaintiff did not appear for his deposition by

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December 15, 2023 and failed to pay this first set of monetary sanctions. (See Report at

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4, 10.)

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Accordingly, Defendant filed a motion for both terminating and monetary

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sanctions pursuant to Federal Rule of Civil Procedure 37(b) and (d) because of Plaintiff’s

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repeated failure to appear for his properly noticed depositions in violation of the

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Magistrate Judge’s orders. ([Doc. 45], “Motion for Sanctions”.) Plaintiff’s counsel did

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not oppose the Motion for Sanctions. (Report at 4.) On March 7, 2024, the Magistrate
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Judge issued its Report and Recommendation pursuant to 28 U.S.C 636(b)(1) and CivLR

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72.1(c), wherein he recommended that the Court: (1) grant the Motion for Sanctions in

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part, (2) dismiss the case with prejudice, and (3) decline to impose additional monetary

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sanctions against Plaintiff. (Report at 11.) Additionally, the Magistrate Judge ordered

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that any objections to his Report and Recommendation were due by March 21, 2024 and

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that “failure to file objections within the specified time may waive the right to raise those

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objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1988).” (Id.)

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The deadline for the parties to file their objections to the Report has now passed no

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objections have been filed, nor has there been a request for additional time in which to

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file an objection. See 28 U.S.C.A. § 636 (“Within fourteen days after being served with a

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copy, any party may serve and file written objections to such proposed findings and

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recommendations as provided by rules of court.”); FED. R. CIV. P. 72(b)(2) (“Within 14

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days after being served with a copy of the recommended disposition, a party may serve

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and file specific written objections to the proposed findings and recommendations”).

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A district court’s duties concerning a magistrate judge’s report and

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recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the

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Federal Rules of Civil Procedure (“Rule 72(b)”) and 28 U.S.C. § 636(b)(1). When no

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objections are filed, the district court is not required to review the magistrate judge’s

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report and recommendation de novo. E.g., United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003) (emphasis in original) (holding that 28 U.S.C. § 636(b)(1) “makes it

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clear that the district judge must review the magistrate judge’s finding and

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recommendations de novo if objection is made, but not otherwise.”); Wang v. Masaitis,

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416 F.3d 992, 1000 n.13 (9th Cir. 2005) (emphasis added) (“Of course, de novo review of

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a R & R is only required when an objection is made to the R & R.”) (citing Reyna-Tapia,

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328 F.3d at 1121); Ragudo v. Saul, 411 F. Supp. 3d 1125, 1129–30 (S.D. Cal. 2019)

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(citations omitted) (“The district court need not review de novo those portions of an R&R

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to which neither party objects.”); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal.
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2005) (“[N]either party has objected to the Report. Accordingly, the Court will adopt the

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Report and Recommendation in its entirety.”). Instead, the Advisory Committee Notes to

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Rule 72(b)’s 1983 amendments instruct “[w]hen no timely objection is filed, the court

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need only satisfy itself that there is no clear error on the face of the record in order to

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accept the recommendation.” See, e.g., Nevarez v. Godwin, 2023 WL 5674407, at *2

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(S.D. Cal. Sept. 1, 2023); Benavidez v. Cnty. of San Diego, 2022 WL 617313, at *1 (S.D.

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Cal. Mar. 2, 2022); Michael Louis W. v. Kijakazi, 2022 WL 2918613, at *1 (S.D. Cal.

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July 25, 2022).

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Having reviewed the Report, the Complaint, and the entire record in this case, the

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Court finds that the Magistrate Judge’s Report is thorough, well-reasoned, and contains

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no clear error. Accordingly, Court accepts the Magistrate Judge’s recommendation and

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ADOPTS the Report [Doc. 47] in its entirety. For the reasons stated in the Report, which

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is incorporated herein by reference, the Court GRANTS IN PART AND DENIES IN

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PART the Motion for Sanctions [Doc. 45]; ORDERS this case DISMISSED WITH

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PREJUDICE; and declines to impose additional monetary sanctions on Plaintiff

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(however, the original monetary sanctions of $3,503 remain in place, see [Doc. 37] at 8).

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The Clerk shall close the District Court case file.

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IT IS SO ORDERED.

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Dated: May 8, 2024

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