Hunt v. Access Vegas II, LLC

Filing 32

ORDER that 28 Report and Recommendation is Adopted in its entirety. The clerk shall enter judgment accordingly and close the case. Signed by Judge James C. Mahan on 12/19/16. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

***

7

ROBERT HUNT,

8

Plaintiff(s),

9
10

Case No. 2:15-CV-1125 JCM (GWF)
ORDER

v.
ACCESS VEGAS II, LLC,

11

Defendant(s).

12
13

Presently before the court is Magistrate Judge Foley’s report and recommendation that

14

defendant Access Vegas II, LLC’s motion for sanctions (ECF No. 21) and supplement to its motion

15
16

for sanctions (ECF No. 24) be granted.1

(ECF No. 28).

Magistrate Judge Foley further

recommends that plaintiff Robert Hunt’s complaint (ECF No. 1-3) be dismissed with prejudice.
(ECF No. 28). Plaintiff has not filed a timely objection to the report and recommendation.

17
18

On May 31, 2016, defendant filed a motion for sanctions pursuant to Federal Rule of Civil
Procedure 37, and defendant later filed a supplement to that motion. (ECF Nos. 21, 24). Defendant

19

first indicates that plaintiff had not appeared for his depositions and that it had—on several

20

occasions—needed to renotice the deposition. (ECF No. 21). Further, defendant alleges that

21

plaintiff has not responded to written discovery requests or a request for physical examination.

22

(ECF No. 24). Defendant argues that: (1) sanctions pursuant to Federal Rule of Civil Procedure

23

37(d) are warranted due to plaintiff’s recalcitrance during the discovery process; (2) plaintiff’s

24
25

actions were willful and done in bad faith; and (3) a consideration of the five factors in Henry v.
Gill Industries, suggests that plaintiff’s complaint should be dismissed. See 983 F.2d 943 (9th Cir.
1993); see also (ECF No. 21). Plaintiff did not file a response to this motion.

26
27
28
1

James C. Mahan
U.S. District Judge

Defendant does business as Harbor Island Apartments.

1

This court “may accept, reject, or modify, in whole or in part, the findings or

2

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party fails to object to a

3

magistrate judge’s report and recommendation, however, the court is not required to conduct “any

4

review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140,

5
6
7

149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review
a magistrate judge’s report and recommendation where no objections have been filed. See United
States v. Reyna–Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review
employed by the district court when reviewing a report and recommendation to which no

8

objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)

9

(reading the Ninth Circuit’s decision in Reyna–Tapia as adopting the view that district courts are

10

not required to review “any issue that is not the subject of an objection.”).
Nevertheless, this court finds it appropriate to engage in a de novo review to determine

11
12

whether to adopt the recommendation of the magistrate judge.
The magistrate judge properly considered Federal Rule of Civil Procedure 37(b)(2)(A)(iii)

13
14
15
16
17
18
19
20
21
22

and (d)(3), which authorize a court to impose a sanction by “striking pleadings in whole or in part”
if a party does not “provide or permit discovery.” See (ECF No. 28). Moreover, the magistrate
judge accurately assessed the following 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 sanctions.”
Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987); see also (ECF No. 28).
Upon review, this court agrees with the magistrate judge that the first three factors favor
this case’s dismissal. (ECF No. 28). This court further concurs with the magistrate judge that
there are no less drastic sanctions that would advance the case. (Id.). Based on the plaintiff’s
failure to: (1) appear for his depositions; (2) respond to discovery requests; (3) respond to

23

defendant’s motion for sanctions; and (4) object to the present report and recommendation, it is

24

apparent that plaintiff is willfully not participating in a case that he initiated. See Dreith v. Nu

25

Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011); (ECF Nos. 21, 24). Therefore, dismissal of the

26

complaint is an appropriate sanction in this case. Fed. R. Civ. P. 37(b)(2)(A)(iii) and (d)(3).

27

...

28

...

James C. Mahan
U.S. District Judge

-2-

1

Accordingly,

2

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and

3

recommendation of Magistrate Judge Foley (ECF No. 28) be, and the same hereby are, ADOPTED

4

in their entirety.

5
6
7

The clerk shall enter judgment accordingly and close the case.
DATED December 19, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
James C. Mahan
U.S. District Judge

-3-