Mendez v. Community Health Clinics, Inc.

Filing 75

MEMORANDUM DECISION AND ORDER OF DISMISSAL. Community Health's Motion to Strike (Dkt. 67) is GRANTED. Mendez's Second Motion to Compel (Dkt. 61), Motion for Sanctions (Dkt. 62), and Second Motion for Leave to Amend (Dkt. 63) are STRICKEN. C ommunity Healths Motion to Dismiss and for Sanctions (Dkt. 50) is GRANTED. This case is DISMISSED with PREJUDICE and CLOSED. The Court will enter a separate judgment in accordance with Fed. R. Civ. P. 58. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
RAUL MENDEZ,

Case No. 1:16-cv-00425-DCN

Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
COMMUNITY HEALTH CLINICS,
INC, dba TERRY REILLY HEALTH
SERVICES,
Defendants.
I. INTRODUCTION
Pending before the Court are various motions filed by the parties in this case.
Defendant Community Health Services, Inc. (“Community Health”) has filed its Second
Motion to Dismiss and for Sanctions (Dkt. 50), and a Motion to Strike (Dkt. 67). Plaintiff
Raul Mendez has filed his Second Motion to Compel (Dkt. 61), a Motion for Sanctions
(Dkt. 62), and a Second Motion for Leave to Amend (Dkt. 63).
Having reviewed the record, the Court finds that the parties have adequately
presented the facts and legal arguments in the briefs. Accordingly, in the interest of
avoiding further delay, and because the Court finds that the decisional process would not
be significantly aided by oral argument, the Court decides the pending motions on the
record and without oral argument. Dist. Idaho Loc. Civ. R. 7.1(d)(1)(B).
II. FACTUAL AND PROCEDURAL BACKGROUND
This case has a somewhat lengthy and complicated history. To understand the
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posture of the current motions—as well as the Court’s overarching decision of dismissal
today—some of that history must be recounted.
Mendez filed this case against Community Health as a pro se litigant on September
20, 2016. Dkt. 2. In his Complaint, Mendez alleges that Community Health discriminated
against him on the basis of race, color, and national origin. Discovery proceeded in a
relatively normal fashion, albeit with many extensions of the discovery deadlines.1
On March 4, 2019, Mendez filed a Motion to Amend Complaint. Dkt. 36. In this
Motion, Mendez sought to amend his complaint to add a First Amendment Retaliation
claim. Id. After briefing, the Court issued a Decision on May 29, 2019. Dkt. 40. In that
Decision, the Court found that: 1) Mendez could not justify the tardiness of his motion
(having filed it approximately 13 months after the motion to amend deadline); and 2)
timing aside, Mendez did not have sufficient evidence to support such an amendment. In
short, the Court denied Mendez’s Motion to Amend. Id.
On May 9, 2019—prior to the Court’s Decision on Mendez’s Motion to Amend
being issued—Mendez filed a Motion to Compel. Dkt. 39. In this Motion, Mendez asserted
that Community Health failed to respond to various discovery requests. Id.
On June 24, 2019, Mendez filed a Motion for Reconsideration asking the Court to
reconsider its decision on his Motion to Amend Complaint. Dkt. 41.
On August 12, 2019, Community Health filed a Motion to Dismiss or in the
Alternative, Motion to Compel Deposition and for Sanctions (Dkt. 43) alleging that

1

Some of these extensions were sought by the parties, others were necessary due to the Court’s heavy
docket and the time it took to address pending motions.

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Mendez failed to appear for his scheduled deposition without justification. Community
Health sought case-terminating sanctions against Mendez for his actions or, alternatively,
for the Court to compel Mendez to appear at his deposition. Dkt. 43.
On January 22, 2020, the Court issued a Memorandum Decision and Order
addressing these three pending motions—Mendez’s Motion to Compel, Mendez’s Motion
for Reconsideration, and Community Health’s Motion to Dismiss or in the Alternative,
Motion to Compel Deposition and for Sanctions. Dkt. 49.
The Court began by discussing Mendez’s Motion to Compel. After reviewing the
relevant facts, the Court determined that Community Health had likely already turned over
the information Mendez sought, but also noted that Community Health had completely
ignored the actual deadline by which it was required to respond to Mendez’s request. The
Court granted Mendez’ Motion to the extent that Community Health was required to
produce any discovery that was left outstanding and sanctioned Community Health for its
failure to timely respond to the underlying requests. Dkt. 49, at 3-4.
The Court next reviewed all of Mendez’s new arguments related to his Motion to
Amend, but ultimately denied his Motion for Reconsideration noting that there was no
basis for the Court to reconsider its prior findings. Id. at 6-7
Finally, the Court analyzed Community Health’s Motion to Dismiss or in the
Alternative, Motion to Compel Deposition and for Sanctions. In its discussion, the Court
noted that Mendez’s behavior—of simply failing to show up—was inappropriate. It found,
however, that case-terminating sanctions were not appropriate at that time. The Court
granted Community Health’s Motion, ordered the parties to find a mutually agreeable date
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for a new deposition, and ordered Mendez to appear “or face sanctions.” Id. at 7-8. The
Court also set February 29, 2020, as the deadline by which Mendez’s deposition had to
occur and March 31, 2020, as the deadline for all dispositive motions. Id. at 10.
On March 25, 2020, Community Health filed its Second Motion to Dismiss and For
Sanctions. Dkt. 50.2 While the Court will delve heavily into the background and substance
of these matters below, it notes here that Community Health filed this motion after Mendez
failed, again, to appear for his deposition as ordered by the Court. See generally id.
Mendez’s response to Community Health’s Motion was due on or before April 15, 2020.
On March 30th and 31st, Mendez informally reached out (via email) to the Court’s
law clerk and indicated that as a pro se litigant with limited access to technology, it would
be nearly impossible for him to respond to Defendant’s motion with the COVID-19
pandemic raging and the Governor of Idaho’s stay-at-home order in place. The Court’s law
clerk advised Mendez that he should coordinate with opposing Counsel regarding an
extension and file a stipulation (or motion if necessary) regarding a new deadline for his
response brief.
It does not appear that Mendez coordinated with opposing counsel as suggested by
the Court’s law clerk, but instead filed a Motion for Extension on April 5, 2020. Dkt. 53.
In his motion, Mendez reiterated that because of the COVID-19 pandemic—specifically
the Governor of Idaho’s stay at home order issued on March 25, 2020—he did not have

2

Community Health’s original motion (Dkt. 50) violated District of Idaho’s Local Civil Rule 7.1 in that in
exceed the 20-page limit for briefs. It appears Community Health realized this error as it submitted a revised
brief that complied with rule 7.1 two days later (Dkt. 52).

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access to the local library where he typically researched the law and drafted materials for
his case. Id. In light of these limitations, Mendez asked for an extension of time of 45
days—or until May 20, 2020—in which to respond to Community Health’s Second Motion
to Dismiss. Id.
Community Health opposed Mendez’s motion, asserting that he had not met the
necessary good cause requirements for an extension and that, even if he had, 45 days was
excessive. Dkt. 55.
Ultimately, the Court decided an extension was warranted due to the COVID-19
pandemic but gave Mendez 30 extra days in which to respond, as opposed to the 45 days
Mendez sought. Dkt. 56, at 3-4. Mendez’s new deadline was May 15, 2020.
Mendez informally contacted the Court again on May 3, 2020, indicating he would
need more time to finish his response and “other additional pleadings.” The Court’s law
clerk instructed Mendez to coordinate with Community Health and, if necessary, to file
another motion for an extension.
On May 8, 2020, Mendez filed his Second Motion for Extension of Time. Dkt. 57.
Citing again to the COVID-19 pandemic and his inability to access the local library,
Mendez asked for another extension of up until June 1, 2020, in which to respond to
Community Health’s Second Motion to Dismiss. Id.
Community Health opposed Mendez’s second motion, noting specifically that
Mendez had not tried—as the Court suggested in its prior order—to find other means or
methods (besides the local library) by which to conduct his business. Dkt. 59. Community
Health also noted that Mendez had, once again, failed to contact them in order to resolve
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this matter informally without the need for a motion.3 Id.
The Court returns to Mendez’s Second Motion for Extension. In its subsequent
Decision on that motion, the Court noted that Mendez had “continually failed to abide by
the Court’s informal and formal instructions that he needs to communicate with opposing
counsel on all issues.” Dkt. 60, at 3. Despite this—and over the strong objections of
Community Health—the Court once again granted Mendez’s Motion and gave him until
June 1, 2020, to file his materials but noted that “no further extensions [would] be granted.”
Id. at 4.
On May 29, 2020, Mendez filed a slew of Motions.
First, Mendez filed a Second Motion to Compel. Dkt. 61. This motion relates back
to Mendez’s first Motion to Compel and the Court’s prior decision. In short, Mendez again
seeks discovery from Community Health that was, purportedly, never turned over. Id.
Second, Mendez filed his own Motion for Sanctions against Community Health,
alleging that they are harassing him by filing their motions for sanctions. Dkt. 62.
Third, Mendez filed a Second Motion for Leave to Amend Complaint. Dkt. 63. This
motion is related to Mendez’s first Motion to Amend (Dkt. 36) and the Court’s prior
decisions—on the motion itself (Dkt. 40), and on reconsideration (Dkt. 49).
Fourth, and finally, Mendez responded to Community Health’s Second Motion to
Dismiss. Dkt. 65. Unfortunately, Mendez’s Motion was 30 pages in length—ten pages over
3

The Court notes that each party in this case continually and repeatedly brings up the same points in each
motion and in each response. These “common threads” are as follows: Community Health’s continued
complaint that Mendez does not communicate with them or respect their schedule or the Court’s; Mendez’s
repeated complaint that Community Health has failed to provide him with appropriate discovery and that
their failure has hindered every other aspect of the case.

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the District of Idaho’s local rule regarding page limitations. In light of this error, the Court
struck Mendez’s filing and gave him another ten days, or until June 10, 2020, to file a
memorandum in compliance with the rules. Dkt. 66.4
On June 3, 2020, Community Health filed the currently pending Motion to Strike.
Dkt. 67. In this Motion, Community Health seeks to strike Mendez’s Second Motion to
Compel (Dkt. 61), Motion for Sanctions (Dkt. 62), and Second Motion for Leave to Amend
Complaint (Dkt. 63) for various reasons. Id.
On June 10, 2020, Mendez filed a Motion for Extension of Time. Dkt. 68. In this
Motion, Mendez asked that his deadline for filing his shorter brief in response to
Community Health’s Motion to Dismiss be extended until June 24, 2020—the date his
response to Community Health’s Motion to Strike was due. Community Health objected
to the Motion noting: 1) that Mendez had already been given numerous extensions already;
2) that unbeknownst to them (and the Court) Mendez was apparently using all of the
previously granted extensions to prepare three new motions (as opposed to focusing on his
response brief); 3) that the timestamp on Mendez’s filing was almost 11:00pm at night and
that no libraries are open at that time (undercutting Mendez’s argument throughout these
recent events that he needed access to a library to complete tasks); and 4) that the Court
had already warned Mendez that no further extensions would be granted. Id.

4

In its order, the Court specifically stated that Mendez’s brief could not exceed 20 pages. Dkt. 66. Via
email, the Court’s clerk erroneously said that Mendez’s motion was “5 pages over length” (thus, appearing
to suggest Mendez could file a brief of up to 25 pages). In a subsequent order, the Court noted this error,
and again told reminded Mendez that his brief was limited to 20 pages. Dkt. 70, at 2. Mendez’s subsequent
brief was 24 pages. Dkt. 71.

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The Court shared Community Health’s concerns. Nevertheless, over Community
Health’s strong objections, the Court again granted Mendez’s Motion and gave him an
additional nine days (until June 19, 2020) in which to file his shortened Response. Dkt. 70.
The Court reiterated that Mendez’s response to Community Health’s Motion to Strike was
due on June 24, 2020, and instructed Community Health to file all of its reply briefs by
July 2, 2020. Id.
The parties complied. The Motions are now ripe for the Court’s consideration.
While the Motion to Dismiss is dispositive of this case (and arguably moots the remaining
Motions) the Court will address each motion. It does this for two reasons. First, there are
independent reasons that justify granting Community Health’s Motion to Strike. Second,
Mendez has already indicated his intent to appeal this case should anything not go his way.
A thorough record will thus be helpful.
III. DISCUSSION
A. Motion to Strike (Dkt. 67)
1. Introduction
As noted, Community Health filed this Motion to Strike in response to Mendez
filing three other motions: his Second Motion to Compel (Dkt. 61), his Motion for
Sanctions (Dkt. 62), and his Second Motion for Leave to Amend (Dkt. 63). Community
Health relies on Federal Rule of Civil Procedure 12(f) and a somewhat lose “claim” for
abuse of process in support of its Motion to Strike. Dkt. 67, at 2-3.
2. Legal Standard
First, Federal Rule of Civil Procedure 12 provides the court a basis to “strike from
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a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). “The function of a 12(f) motion to strike is to avoid the
expenditure of time and money that must arise from litigating spurious issues by dispensing
with those issues prior to trial . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
973 (9th Cir. 2010) (cleaned up).
Second, a claim for abuse of process involves two elements: “(1) a willful act in the
use of legal process not proper in the regular course of the proceeding that was (2)
committed for an ulterior, improper purpose.” Nelson-Ricks Cheese Co., Inc. v. Lakeview
Cheese Co., LLC, No. 4:16-CV-00427-DCN, 2018 WL 1460970, at *2 (D. Idaho Mar. 23,
2018). “The crucial inquiry is whether the judicial system’s process . . . has been misused
to achieve another, inappropriate end.” Ramirez v. United States, 93 F. Supp. 3d 1207,
1232 (W.D. Wash. 2015) (cleaned up).
3. Analysis
While Community Health puts forth individualized reasons for denying each of
Mendez’s three new motions, its overarching argument is that all three motions are
untimely, immaterial, or moot and should be stricken. Under the circumstances, the Court
must agree.
a. Second Motion to Compel (Dkt. 61)
In his Second Motion to Compel, Mendez argues that Community Health needs to
send (or resend) him copies of their initial disclosures from November 8, 2017, and
supplement its responses pursuant to the Court’s January 22, 2020 Order. Mendez also
reasserts his general belief that Community Health is withholding relevant discovery from
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him.
As will be explained in the Court’s discussion regarding Community Health’s
Second Motion to Dismiss, Community Health has been very accommodating in providing
Mendez with copies of discovery material—in digital and paper form. Substantively,
however, the Court notes that the information Mendez seeks at this point has, by all
accounts, been produced to him on numerous prior occasions. On June 15, 2019,
Community Health emailed Mendez a drop-box link with all of its initial disclosures. It
also mailed a CD to Mendez containing the same information. Following the Court’s
January 22, 2020 order in which the Court sanctioned Community Health for failing to
timely respond to Mendez’s requests, Community Health sent the materials to Mendez
again. Then, when Mendez complained he could not access the documents, Community
Health went to the effort to print them out and delivered hard copies (totally over 500
pages) to Mendez. In addition, Community Health supplemented its responses—per the
Court’s January 22, 2020 order—and provided everything Mendez requested.
As far as the Court can tell, Community Health has turned over (in some instances
repeatedly) the information Mendez seeks. Importantly, Community Health affirmatively
shows that it has already produced all of the discovery Mendez identifies in his motion as
outstanding. Accordingly, Community Health’s Motion to Strike is GRANTED and
Mendez’s Motion to Compel is STRICKEN as MOOT.
b. Motion for Sanctions (Dkt. 62)
As noted, Mendez’s basis for his Motion for Sanctions appears to be his beliefs that
Community Health has provided false information to the Court and that Community Health
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is harassing him by filing its Motions to Dismiss and for Sanctions. The Court rejects both
arguments.
First, Mendez does not cite to any false information per se, but seems to suggest that
because the Court sanctioned Community Health for not timely responding to his discovery
requests, they are somehow tainted and deserve further sanctions. The Court, however, has
already dealt with these matters and will not impose further penalties on Community
Health. As part of its prior decision, the Court determined that certain sanctions were, in
fact, necessary in light of Community Health’s failure to timely respond to Mendez’s
discovery requests. Those sanctions included: 1) deeming Mendez’s Requests for
Admissions admitted; 2) a finding that further material might be admitted or excluded prior
to trial; and 3) a monetary sanction in the amount of $236.59. Dkt. 49, at 4, 9. Such
sanctions stand, but there is no need for further sanctions on matters already decided.
Moreover, without any actual evidence or examples of further misbehavior, the Court will
not randomly impose additional sanctions on Community Health.
Second, Mendez claims that Community Health is harassing him by filing motions
to dismiss and complains that Community Health did not apprise him or the Court’s law
clerk that it would be filing such motions. As a threshold matter, the Court notes there is
no need to alert another party to the filing of any motion and rarely is there a time when
the Court’s law clerk needs to be made aware of any incoming filing. Furthermore, the
filing of a motion—even a motion for dismissal or sanctions—does not, in itself, constitute
harassment. Mendez’s allegations are baseless and immaterial. Community Health’s
Motion is accordingly GRANTED and Mendez’s Motion for Sanctions is STRICKEN as
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frivolous.
c. Second Motion for Leave to Amend (Dkt. 63)
Hearkening back to his Motion for Leave to Amend (Dkt. 36) and Motion for
Reconsideration (Dkt. 41), Mendez claims that the Court should give him another
opportunity to amend in order to add a new claim under the Federal Tort Claims Act.
Critically, this plea differs slightly from the basis for Mendez’s prior motion for leave to
amend, wherein he sought leave to add a claim for First Amendment Retaliation. The
Court, however, will not delve into these nuances for two reasons.
First, insofar as any of Mendez’s current concerns are related to those he raised in
his prior Motion to Amend and Motion for Reconsideration, the Court notes it already
analyzed those arguments at length (twice) and, after its second review, noted that Mendez
“[would] not be allowed to file an amended complaint.” Dkt. 49, at 7.
Second, insofar as any of Mendez’s arguments are “new” and/or support a slightly
different cause of action than that for which he has already sought leave to amend, the
Court reiterates that the time for amendment has long since passed. Mendez was over a
year late in bringing his motion to amend in March of 2019. A Motion brought in May of
2020 is all the more untimely. In short, any arguments that hearken back to prior motions
have already been litigated and are moot, and any new arguments are extremely untimely.
Therefore, the Court GRANTS Community Health’s Motion. Mendez’s Second Motion to
Amend is STRICKEN as UNTIMELY and MOOT.
4. Conclusion
In addition to the Court’s individualized findings that Mendez’s three motions
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should be stricken pursuant to Rule 12(f), the Court agrees with Community Health that
each represents an abuse of process. To be sure, Community Health has not filed a
counterclaim for abuse of process, however, their point is well taken and acts as a second,
and overarching, reason to strike each of Mendez’s three motions.
“The gist of the tort of abuse of process is misusing the process justified in itself for
an end other than that which it was designed to accomplish.” Pochiro v. Prudential Ins.
Co., 827 F.2d 1246, 1252 (9th Cir. 1987) (cleaned up).
Here, the Court granted Mendez numerous extensions based upon his purported
difficulty accessing technological resources (computers, scanners, printers etc.) during the
COVID-19 pandemic. The Court granted each of those extensions with the understanding
that each was needed in order for Mendez to prepare a response to Community Health’s
pending Motion to Dismiss, not to prepare additional motions.5 To use that time to prepare
three additional Motions—two of which were repetitive of prior motions which had already
been ruled upon—was frankly an abuse of the Court’s generous orders.
In sum, the Court finds Community Health’s Motion to Strike well taken. Each of
Mendez’s Motions (Dkts. 61, 62, 63) are STRICKEN.
B. Second Motion to Dismiss and for Sanctions (Dkt. 50)
Before discussing Community Health’s current Motion to Dismiss, the Court will

5

To be fair, the Court did not specifically ask Mendez what he needed the additional time for. Also, on
more than one occasion, Mendez stated he needed more time to prepare “briefs” and “materials” (i.e. plural),
and on more than one occasion the Court said Mendez could have the time to prepare his “briefs.” Again,
however, the Court was operating under the assumption that Mendez was working on the currently pending
Motion to Dismiss and that any reference to “briefs” or “materials” was in that context (i.e. supporting
materials or other attachments for that brief). In any event, the Court did not think Mendez was going to
conjure up three entirely new motions during the extra time it allotted him.

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briefly review Community Health’s first Motion to Dismiss. Next, the Court will examine
(in greater detail) the factual background giving rise to this Motion. Finally, the Court will
address the merits of Community Health’s Motion to Dismiss.
1. First Motion to Dismiss (Dkt. 43) and Decision (Dkt. 49)
In its first Motion to Dismiss (Dkt. 43), Community Health explained that Mendez
was scheduled to appear for his deposition on a date certain but that when that date came,
Mendez failed to appear without providing any explanation. Dkt. 43-1, at 2–3. Community
Health sought case-terminating sanctions as a result of Mendez’s failure to appear, or at
the very least, an order from the Court compelling Mendez to appear for his deposition.
Additionally, Community Health sought reimbursement of the expenses it paid the Court
Reporter the day Mendez failed to appear—$236.59. Id. at 3.
In briefing, Mendez explained that he did not show up for his deposition because he
had yet to receive responses to his discovery requests. The Court weighed the evidence and
found that “case-terminating sanctions—such as dismissal—[were] ‘harsh,’” “should ‘be
imposed only in extreme circumstances,’” and that Mendez’s “failure to appear [was] not
a circumstance that warrant[ed] full dismissal of [his] case.” Dkt. 49, at 8 (citing Henderson
v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Court noted however that “Mendez’s
‘tit-for-tat’ behavior—that he didn’t need to appear as scheduled because Community
Health hasn’t responded to his discovery requests—[was] not appropriate,” and that
“Mendez’s behavior—[of] simply doing nothing—[was] not in line with the Court’s
expectations of fair play in litigation . . . .” Id. Additionally, the Court determined that
under Rule 37, Community Health was entitled to a remedy for Mendez’s failure to appear
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at his deposition and sanctioned Mendez $236.59—the amount necessary to reimburse the
court reporter who had appeared that day.6
Ultimately, the Court instructed the parties to work together “to find a suitable date
and time” to hold Mendez’s deposition and set a deadline of February 29, 2020, for said
deposition to take place. The Court also explicitly stated that “Mendez shall appear for the
deposition or face sanctions.” Id. at 8 (emphasis added).
2. Background
The Court issued its prior Decision (denying Community Health’s Motion to
Dismiss and commanding Mendez to appear for his deposition) on January 22, 2020. Dkt.
49. As noted, the Court gave the parties until February 29, 2020—approximately five and
a half weeks—in which to schedule and hold Mendez’s deposition.
Immediately following the Court’s order, Community Health’s Counsel reached out
to Mendez to schedule his deposition. Dkt. 50-2, at 18-19. After coordinating schedules,
Mendez agreed that his deposition could take place on February 20, 2020. Id. at 20. When
he agreed to this date, Mendez explained that he was still reviewing the Court’s order and
that he would need various records in order to prepare for his deposition. Id. Community
Health’s counsel responded to Mendez’s comment explaining that it had already provided
him with all the discovery in the case. Id. at 22. Mendez disagreed, said he intended to file
yet another request for discovery, and opined that it would be interesting “should this case

6

The Court, however, likewise found that Mendez was entitled to a remedy in light of Community Health’s
failure to timely respond to discovery. Mendez’s “award” was waiving the $236.59 fee imposed. Thus,
while both parties were sanctioned monetarily, the sanctions cancelled each other out.

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end up on appeal.” Id. at 25. Community Health’s Counsel responded again, advised
Mendez that he should simply follow the Court’s order, and said it would send him
anything he needed in order to prepare for his deposition. Id. Mendez indicated that he
could not open the CD containing discovery that Community Health sent him and requested
paper copies. Id. Community Health printed and delivered over 500 pages of documents to
Mendez. Dkt. 50-1, at 4.
The above emails took place between January 28, 2020, and February 2, 2020.
Community Health provided hard copies of all discovery to Mendez on February 5-6, 2020.
After the close of business on February 6, 2020, Mendez emailed the Court’s law
clerk. Dkt. 50-2, at 38. In his email, Mendez raised various concerns about how the case
was proceeding and noted he did not think he would have time to prepare for his deposition
on February 20. Mendez specifically stated, “if I’m asked if I’m ready for the deposition I
will answer that i’m not because I haven’t had the time to prepare for it.”7 Id.
On February 7, 2020, the Court’s law clerk responded to Mendez’s email8 and
offered the following:
If you have concerns about the timing of the deposition, I encourage you to
work with opposing counsel. If you need to extend the timeframe outlined
by the Court, you may file a motion to do so (or a stipulation indicating you
7

The Court highlights this comment because it appears Mendez already seemed to know—two weeks
before his deposition—that he was not going to be ready. If Mendez knew that far in advance that he was
going to need more time, he could have easily motioned the Court for an extension. In addition, this is
something of a self-fulfilling prophecy. Mendez made no indication that he would try to get ready by
February 20th; rather opting to affirmatively state he would not be ready by February 20th.

8

Mendez frequently emails the Court’s law clerks—in this case as well as his other cases—to ask
procedural questions. The Court’s law clerks have been given permission to respond to Mendez’s emails
and provide guidance on procedural matters, but have been instructed not to opine on legal issues or give
legal advice. Opposing counsel is always copied on any communications between the Court and Mendez.

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and opposing counsel have agreed on a new date). I strongly recommend
taking all necessary action to ensure the deposition moves forward in some
fashion–Judge Nye’s order was clear that failure to appear for a scheduled
deposition could result in sanctions.
Id. at 37. Days passed without a response (or motion) from Mendez.
On February 12, 2020, Mendez responded to the Court’s law clerk and indicated he
would “try and review everything” before the deposition, but that “in all likelihood, I might
need to reschedule.” Id.
On February 16, 2020 (a Sunday), Mendez emailed Community Health’s counsel.
Id. at 40. Mendez stated that he did not think he would be ready for the deposition because
he still needed to review a lot of information. He also asked (again) for additional discovery
he believed he was missing.
On February 18, 2020, Community Health’s counsel emailed Mendez. In her email,
counsel expressed confusion as to why Mendez could not be ready for his deposition when
“most, if not all of the materials produced [are] documents you’ve seen, authored, or been
aware of since at least the time the IHRC was investigating your claims [which occurred
years ago].” Id. at 41. Counsel went on to state that “if you are proposing a different date
for our deposition, I need to know that immediately so we can consider your request.” Id.
The following day—February 19 (the day before the deposition)—Mendez called
Community Health’s counsel’s office. He told a staff member that he was not ready for his
deposition the following day. Id. at 44. This staff member then got a hold of Community
Health’s lead counsel who tried to call Mendez back to discuss matters. Mendez did not
answer but sent a text later that day stating that he could not “attend the deposition because

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I’m not ready.” Dkt. 50-2, at ¶ 9. Mendez indicated that he “had a medical problem and
would send an email with his explanation and documentation.” Id.
That night at approximately 7:00 p.m., Mendez sent Community Health’s Counsel
an email. In his email, Mendez explained, in part:
I haven’t had time to review all the record even assuming it is just the IHRC
filing. I still have to review the entire case prior to the deposition to give
myself the best chance. I haven’t been able to get thru the records because
I’ve been feeling weak and lightheaded. Apparently, it is due to rare
premature ventricular contractions cause by an incomplete right bundle
branch block. I’m not making up excuses about not being ready for the
deposition. If I was healthy then I would have gotten thru it before tomorrow.
I suppose the deposition will have to rescheduled once I have gone through
everything. I will let you know.
Id. at 45. Attached to this email were two medical “documents.” The first page is some
type of cover sheet dated January 20, 2020, but signed February 1, 2020, that summarizes
the second page. The summary on the first page indicates Mendez has “normal sinus
rhythm” and “rare premature ventricular contractions.” Id. at 46. The second page appears
to be an EKG spreadsheet or printout. Id. at 47. Critically, there is no hospital name or
doctor’s name identified on either page. Further, there is little to connect these documents
to Mendez’s purported failure to prepare for, and attend, his deposition. Both appear to
have been generated over a month before they were produced to Community Health’s
counsel.
Mendez did not appear for his scheduled deposition the next morning.
3. Analysis
Community Health now moves for the full dismissal of Mendez’s case as a sanction
for his second failure to appear for his scheduled deposition.
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Federal Rule of Civil Procedure 37 authorizes sanctions against a party for noncompliance with a discovery order. Fed. R. Civ. P. 37(b)(2). Rule 37 allows a Court to
impose various sanctions up to, and including, dismissal. Fed. R. Civ. P 37(b)(2)(A)(i)—
(vii). The level of any sanction imposed is within the Court’s discretion. See O’Connell v.
Fernandez–Pol, 542 Fed. Appx. 546, 547–48 (9th Cir.2013) (“By the very nature of its
language, sanctions imposed under Rule 37 must be left to the sound discretion of the trial
judge.”); Sanchez v. Rodriguez, 298 F.R.D. 460, 463 (C.D. Cal. 2014) (“Rule 37(b)(2)(A)
authorizes the court to impose whatever sanctions are just when a party fails to comply
with a discovery order, up to dismissal of part or all of the party’s claims.”).
To impose the sanction of dismissal, a court must first find that plaintiff’s noncompliance was due to “willfulness, bad faith, or fault.” Henry v. Gill Indus., Inc., 983 F.2d
943, 947 (9th Cir. 1993). “Willfulness, bad faith, or fault” does not require wrongful intent;
rather, “[d]isobedient conduct not shown to be outside the party’s control is by itself
sufficient to establish willfulness, bad faith, or fault.” Jorgensen v. Cassiday, 320 F. 3d
906, 912 (9th Cir. 2003) (cleaned up).
Even after a finding of “willfulness, bad faith, or fault,” the Court must weigh
several factors when determining if dismissal is appropriate:
(1) the public’s interest in expeditious resolution of litigation; (2) the court’s
need to manage its dockets; (3) the risk of prejudice to the party seeking
sanctions; (4) the public policy favoring disposition of cases on their merits;
and (5) the availability of less drastic sanctions.
Anheuser-Busch, Inc. v. Nat. Beverage Distrib., 69 F.3d 337, 348 (9th Cir. 1995). While
the Court is not required to make explicit findings with respect to each of these factors, a

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finding of willfulness, fault, or bad faith is required for dismissal to be proper. Leon v. IDX
Sys., Corp., 464 F.3d 951, 958 (9th Cir. 2006).
The Court must step back momentarily to discuss a nuance in Rule 37. Community
Health has alleged that sanctions are proper under Rule 37(b)—failure to comply with a
court order—and Rule 37(d)—failure to attend a deposition. It is important to note that
while a finding of willfulness, bad faith, or fault is required under Rule 37(b), such a finding
is not a prerequisite for imposing sanctions under Rule 37(d). Hyde & Drath v. Baker, 24
F.3d 1162, 1171 (9th Cir. 1994). Rule 37(d) actually allows for direct sanctions to be
imposed even without a prior court order compelling discovery and even where a party has
not previously been warned for any rule misconduct. Halaco Eng’g Co. v. Costle, 843 F.2d
376, 380 n. 1 (9th Cir. 1988); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981).
The interesting part about this case then is the fact that the Court’s discovery order
that was violated was an order to attend a deposition. Hence the interplay between
subsections (b) and (d). Thus, at the outset, the Court notes that it could impose sanctions
(including dismissal) based upon Rule 37(d) alone without finding any willfulness, bad
faith, or fault on Mendez’s part. The Court frankly could have done so after Mendez’s first
failure to appear for his deposition. The Court, however, was lenient and gave Mendez a
warning along with another chance to comply. The Court could impose such a sanction at
this juncture as well under Rule 37(d) without a finding of willfulness, bad faith, or fault.
However, as the Court has done throughout this case, it will be lenient and use the more
stringent standard in evaluating Mendez’s conduct.

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a. Willfulness, Bad Faith, or Fault
In this case, the Court finds that Mendez’s lack of compliance was due to
“willfulness, bad faith, and fault,” and not due to circumstances outside of his control.
Mendez has now failed to appear for two scheduled depositions. His first failure
was wholly without justification: he did not communicate his intentions to Community
Health and simply elected not to show up because he felt like they needed to provide him
with more discovery. These actions are a blatant affront to the rules and there is no valid
explanation to excuse them.
Mendez’s second failure was less egregious, but nonetheless, without justification.
This time, Mendez at least communicated with Community Health in the days leading up
to his deposition and indicated that he might need more time before proceeding. Critically,
however, Mendez never actually asked for more time. As noted, Mendez expressed concern
about his level of preparation approximately two weeks before his deposition was to take
place. The Court’s law clerk instructed Mendez to either work with opposing counsel to
schedule a new date, or motion the Court for an extension. Dkt. 50-2, at 35. Counsel for
Community Health likewise asked Mendez to propose different dates so that they could
consider them. Id. at 41. Mendez did not heed the Court’s law clerk’s instruction or take
advantage of Community Health’s Counsel’s offer. He never asked for an extension, never
proposed new dates, and never actually said he needed more time. He simply cast doubt on
his ability to be ready for his deposition. It was not until the night before his deposition that
Mendez sent an email to Community Health’s Counsel indicating he actually would not be
ready for the deposition and that it would need to be rescheduled. This was also the point
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at which, for the first time, Mendez alleged that he had some type of medical condition that
was making preparations difficult. In short, although Mendez had ample opportunities to
follow the Court’s guidance or motion for a change to the Court’s order, Mendez, once
again, simply chose to do nothing.
This type of behavior is unacceptable. The Court does not make the following
comments lightly. The Court treats all litigants, including pro se litigants like Mendez,
equally. Mendez, however, has abused the Court’s kindness9 or simply ignored the court’s
warnings10 seemingly without regard for any consequences or hoping to rely on his pro se
status. The Court’s patience has waned at times, but it has repeatedly given Mendez every
opportunity to prosecute his case. But at a certain point, the Court must simply move on.
Mendez has already indicated he will appeal any decision the Court renders in this
case that is not in his favor. Mendez has taken the same approach in his other cases that
have proceeded before the undersigned. Mendez is no wallflower when it comes to
litigation. As a pro se party, this is an admirable trait. However, it appears sometimes that
Mendez is purposefully trying to make his situation, opposing counsel’s situation, and the
Court’s situation more difficult. He then, in turn, blames the Court, opposing counsel, or

9

As explained, Mendez frequently contacts the Court’s law clerks to ask questions. Mendez has then used
some of these responses as “gotcha” arguments—pitting something a law clerk said (informally) against
another party, or using the law clerk’s comments as legally binding authority for his actions. In this lawsuit,
as well as his many others, Mendez has found ways to downplay his abilities to his advantage. For example,
Mendez has relied on his lack of legal training to get certain accommodations—which the Court provided.
However, on more than one occasion, Mendez then abused, misused, or even used those accommodations
against opposing parties (and even in some instances, against the Court).

10

As explained, Mendez’s response brief to Community Health’s Second Motion to Dismiss was 30 pages
(10 pages over the limit). Despite the Court telling Mendez twice (Dkt. 66, Dkt. 70, at 2) that his brief could
only be 20 pages, he nevertheless filed a 24-page brief (Dkt. 71).

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“the system” for the difficulties he faces.
Even setting aside Mendez’s prior failure to appear (or prior poor behavior in this
case in general), it is not a stretch to say that Mendez’s conduct leading up to his second
deposition was willful and in bad faith. Mendez had the ability to communicate with
opposing counsel and select a new deposition date, but he chose not to. Mendez had the
ability to file a motion with the Court to ask for an extension, but he chose not to. Strikingly,
both of these options were communicated to Mendez on multiple occasions by multiple
people. His failure to remedy the situation and essentially ignore both the Court and
opposing counsel was willful and in bad faith.11 The Court next turns to Mendez’s reasons
for his non-compliance and analyzes whether those reasons were out of his control and
justify his non-appearance.
For his part, Mendez claims that he was unable to attend the second deposition
because: 1) he did not have time to review all the material Community Health “dumped”
on him at the last minute; and 2) because he has some type of medical condition. Both
assertions are questionable—as will be outlined shortly—but even taking all of what
Mendez says as true, it still does not excuse his failure to engage with Community Health
during the weeks preceding the deposition, nor justify his unilateral decision the night

11

The Court finds it particularly interesting that Mendez never apologized to Community Health but simply
said: “I suppose that the deposition will have to be rescheduled.” Dkt. 50-2, at 45. This laissez-faire
approach is another example of Mendez abusing the Court’s leniency and disregarding the opposing party.
There was no remorse in his decision to unilaterally terminate the deposition the night before it was set to
occur. There was no consideration for Community Health’s attorneys who had spent time preparing for the
deposition. Instead, there was the casual and somewhat snide remark that he “supposed” the deposition
would have to be rescheduled at a later time—almost assuming Community Health and the Court would
have no issue with him simply rescheduling the deposition at his personal convenience or that there would
be no consequences for his actions.

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before to simply cancel the deposition.
First, as already eluded to, based upon Community Health’s representations, most
(if not all) of the discovery Community Health provided Mendez on February 5-6, 2020,
was information he had already seen, had access to, and/or been provided. To be sure, 500
pages is a lot of information; however, Mendez had likely already seen much of that, but
even if he had not, he had over two weeks to review the materials before his deposition.
Second, Mendez’s “medical” situation is of questionable origin. There is little to no
information that explains why the deposition could not proceed included on the two vague
and redacted pages Mendez provided Community Health. Furthermore, the “records”
appear to have been created many weeks before the scheduled deposition. Why Mendez
could not provide them earlier is unknown.
Regardless, Mendez has not demonstrated that either of these situations were
outside of his control or negated his duty to appear. In fact, both of these concerns could
have been brought up, and remedied, long before the date of the deposition. In his current
briefing, Mendez claims that the Court’s January 22, 2020 order was prejudicial because it
gave him “less time to prepare for a deposition and case as a whole.” Dkt. 71, at 3.12 Again,
however, were this the case, Mendez could have easily motioned the Court for an
extension—as directed by the Court—or worked with Community Health to secure a new

12

The Court finds this statement somewhat puzzling given Mendez’s numerous prior statements—in the
record, but more prevalently in informal emails to the Court’s law clerk—that this case was moving too
slow. This case is, in fact, one of the older cases on the Court’s docket. There have been significant delays
and extensions of time in this case. Ironically, if those delays were caused by the Court or Community
Health, Mendez has protested and decried his inability to access justice. Conversely, if the delays were at
his request, Mendez suggests they were not an affront to Community Health, but necessary for his ability
to pursue his case.

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date—as directed by the Court and as offered by opposing counsel. Mendez did neither.13
In conclusion, the Court finds that Mendez’s actions were willful, in bad faith, and
frankly, his own fault. Mendez blatantly disregarded the Court’s order that he needed to
appear for his deposition or “face sanctions.” He ignored the Court’s advice to work with
opposing Counsel or seek an extension. He ignored opposing counsel’s invitation to find a
better date for his deposition. The outcome of this debacle is of Mendez’s own making.
Moreover, there is nothing in the record to suggest Mendez’s “[d]isobedient conduct [was]
outside [his] control” and justified. See Jorgensen, 320 F. 3d at 912. Considering all
available evidence, the Court finds Mendez’s behavior inexcusable and worthy of
sanctions.
b. Anheuser-Busch Factors
Having determined that Mendez’s actions warrant some type of sanction, the Court
must next determine whether dismissal—the sanction sought by Community Health—is
appropriate, or if some lesser sanction will suffice. Again, the relevant factors the Court
must consider when determining whether dismissal is appropriate are as follows:
(1) the public’s interest in expeditious resolution of litigation; (2) the court’s
need to manage its dockets; (3) the risk of prejudice to the party seeking
sanctions; (4) the public policy favoring disposition of cases on their merits;
and (5) the availability of less drastic sanctions.

13

Further undercutting Mendez’s argument that he did not have time to prepare, and/or was suffering from
a medical condition that impeded his progress, is the fact that he was actively participating in his other
cases during this same timeframe. For example, Mendez filed a brief on January 10, 2020, in Case 1:19-cv00092-DCN and an entire new lawsuit on February 6, 2020 (Case 1:20-cv-00061-BLW). See Bias v.
Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (cleaned up) (A court “may take notice of proceedings in
other courts, both within and without the federal judicial system, if those proceedings have a direct relation
to matters at issue”).

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Anheuser-Busch, 69 F.3d at 348.
Where, as here, the violation of a court order serves as the basis for the terminatingsanction request, the Ninth Circuit has held that factors one and two (public interest in
expeditious resolution of litigation and the court’s need to manage its docket) support a
terminating sanction while factor four (the public policy favoring disposition of cases on
their merits) weighs against such a sanction. Valley Eng’rs v. Electric Eng’g Co., 158 F.3d
1051, 1057 (9th Cir. 1998); Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir.
1993); Adriana Int’l Corp. v. Thoren, 913 F.2d 1406, 1412 (9th Cir. 1990). Ultimately, the
third and fifth factors are determinative in a case such as this. Adriana, 913 F.2d at 1412.
(i)

Factor 3 – The Risk of Prejudice to the Party Seeking Sanctions
Here, Community Health has faced substantial prejudice in light of Mendez’s

actions. Mendez’s failure to appear has resulted in numerous delays to Community
Health’s “ability to go to trial” and has “threaten[ed] to interfere with the rightful decision
of the case.” Id. Community Health has noted for months that it intends to move for
summary judgment, but cannot do so without Mendez’s deposition. This has frustrated
Community Health’s ability to defend itself, resulted in delays, and no doubt increased
Community Health’s legal fees.
What’s more, the Ninth Circuit has specifically held that the “repeated failure of [a
plaintiff] to appear at scheduled depositions . . . constitutes an interference with the rightful
decision of the case.” Id. The Court finds the third factor has been met: Mendez’s actions
have resulted in severe prejudice against Community Health.

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(ii)

Factor 5 – The Availability of Less Drastic Sanctions
The Ninth Circuit requires a three-part test to determine whether a district court has

properly considered the adequacy of less drastic sanctions: (1) whether the court
implemented alternative sanctions before ordering default or dismissal; (2) whether the
court warned the party of the possibility of default before ordering it; and (3) whether the
court explicitly discussed the feasibility of less drastic sanctions and explained why they
would be inappropriate. Malone v. United States Postal Serv., 833 F.2d 128, 131 (9th Cir.
1987). All three conditions are met in this case.
First, the Court has already considered—and tried—less severe sanctions to ensure
compliance, but to no avail. The Court’s denial of Community Health’s prior Motion to
Dismiss was a lesser sanction. The imposition of a small fine was a lesser sanction.
Granting Mendez another opportunity to appear for his deposition was a lesser sanction.
Mendez did not avail himself of the Court’s leniency. These lesser sanctions clearly had
no effect on his behavior.
Second, while the Court did not specifically warn Mendez that failure to comply
with its order could result in the full dismissal of this case, it clearly stated that if he failed
to appear for his deposition for a second time he would “face sanctions.” Dkt. 49, at 8.14
Dismissal is one of the available sanctions enumerated under both Rule 37(b)—failure to
comply with a Court order—and Rule 37(d)—failure to attend one’s own deposition. Fed.

14

Again, although the Court did not use the word “dismissal”, it was (hopefully) apparent that the Court
could consider that option in the future. After all, it would seem quite inequitable to not consider dismissal
(simply for failure to use that word) when Community Health has sought that exact sanction now on two
occasions and Mendez’s behavior was the same both times.

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R. Civ. P. 37(b)(2)(v) and (d)(3). As such, the Court’s admonition to Mendez that further
noncompliance would be sanctioned was sufficient to apprise him of the possibility of
dismissal.
Third, as noted, the Court has already tried less severe sanctions in this case and
finds that anything less than dismissal at this point is not feasible. Mendez does not have
the ability to pay monetary fines or attorneys’ fees and trying to craft some type of hybrid
discovery sanction would likely be fruitless at this late juncture. Mendez has failed on two
separate occasions—without justification—to appear for his deposition. Allowing his
deposition to proceed at this point (even with some type of accompanying sanction) is
almost no sanction at all. The Court has little confidence in the persuasiveness of any lesser
sanction due to Mendez’s blatant and repeated failures to abide by its prior orders.
Although pro se, Mendez “is expected to abide by the rules of the court in which he
litigates.” Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir. 1986); Ghazali v. Moran, 46 F.3d
52, 54 (9th Cir. 1995) (“pro se litigants are bound by the rules of procedure.”). Mendez has
demonstrated an unwillingness to abide by the Court’s orders and the only sanction
available at this point is dismissal.
4. Conclusion
Despite Mendez’ prior inexcusable failure to appear for his scheduled deposition,
the Court gave him another chance. The Court instructed Mendez to work with Community
Health to “find a suitable date and time that works for both parties to hold [his] deposition.”
Dkt. 49, at 8. The Court also warned Mendez that failure to appear at any rescheduled
deposition would result in sanctions.
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Mendez selected the date of February 20, 2020 for his deposition. He then failed to
appear. And while Mendez brought up concerns about being prepared over two weeks
before the deposition—thus indicating he had ample time to work with Community Health
to reschedule—he chose not to engage, not to heed the Court’s advice, and not to accept
Community Health’s offer to reschedule the deposition. He chose instead to contact
Community Health less than 24 hours before his deposition and unilaterally announce the
deposition could not move forward. The reasons Mendez now puts forth as an excuse for
his failure to appear (needing more time and/or having a medical condition) were known
long before the deposition and could have been resolved. In short, Mendez’s failure to
comply with the Court’s order to appear at his deposition was not outside of his control,
but was based upon choices he made. Those choices are indicative of willfulness, bad faith,
and fault.
In light of this finding, the Court is left with little choice under Rule 37. The Court
let Mendez’s unjustified behavior slide the first time this happened with little more than a
slap on the wrist. That gesture of leniency was ignored, and the behavior happened again.
The Court has considered Mendez’s “deposition behavior,” as well as his general behavior
throughout this case in deciding the appropriate level of sanction. In analyzing the record,
the Court finds that four of the five relevant Anheuser-Busch factors weigh in favor of
dismissal. After years of leniency, second chances, and little to no repercussions for
numerous oversights, the Court has no choice but to dismiss Mendez’s case.
///
///
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IV. ORDER
THE COURT HEREBY ORDERS THAT:
1.

Community Health’s Motion to Strike (Dkt. 67) is GRANTED. Mendez’s

Second Motion to Compel (Dkt. 61), Motion for Sanctions (Dkt. 62), and Second
Motion for Leave to Amend (Dkt. 63) are STRICKEN.
2.

Community Health’s Motion to Dismiss and for Sanctions (Dkt. 50) is

GRANTED. This case is DISMISSED with PREJUDICE and CLOSED.
3.

The Court will enter a separate judgment in accordance with Fed. R. Civ. P.

58.

DATED: February 9, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge

MEMORANDUM DECISION AND ORDER – 30