Wilson v. Wal-Mart Stores, Inc.

Filing 73

ORDER that 20 Motion to Strike is DENIED. Signed by Magistrate Judge Cam Ferenbach on 3/7/16. (Copies have been distributed pursuant to the NEF - MMM)

UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
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KATIE F. WILSON,
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Case No. 2:15–cv–1791–RCJ–VCF

Plaintiff,
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vs.

ORDER

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WAL-MART STORES, INC.,

MOTION TO STRIKE DEFENDANT’S ANSWER AS TO
LIABILITY FOR ONGOING DISCOVERY ABUSES
(DOC. #20)

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Defendant.

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This matter involves Plaintiff Katie F. Wilson’s civil action against Defendant Wal-Mart Stores,
Inc. Before the court are Wilson’s Motion to Strike (Doc. #20), Wal-Mart’s response (Doc. #41), and
Wilson’s reply (Doc. #51). For the reasons stated below, Wilson’s motion to strike is denied.

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I. BACKGROUND
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The instant motions arise from the parties’ discovery disputes. During discovery, Wal-Mart
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moved for a protective order that proposed to limit Wilson’s inspection of the Wal-Mart store where the
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incident occurred. Wilson then filed four motions to compel, related to two noticed depositions and
several sets of written discovery. The court ruled on Wal-Mart’s motion for a protective order limiting
Wilson’s inspection as well as Wilson’s four motions to compel. (Doc. #43).
Wilson now moves to strike Wal-Mart’s answer regarding the issue of liability due to: (1) Wal-

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Mart’s alleged failure provide complete responses to written discovery, (2) Wal-Mart’s alleged failure to

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permit an on-site inspection, (3) Wal-Mart’s alleged failure to produce fact witnesses for their

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depositions, and (4) Wal-Mart’s failure to attend its own deposition.

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II. LEGAL STANDARD

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“If a party or party’s officer, director, or managing agent … fails to provide or permit discovery,

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including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further

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just orders.” FED. R. CIV. P. 37(b)(2)(A). Just orders “may include … striking pleadings in whole or in

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part.” FED. R. CIV. P. 37(b)(2)(A)(iii).

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“Instead of or in addition to the orders [listed in Federal Rule of Civil Procedure 37(b)(2)(A)],

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the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable

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expenses, including attorney’s fees , caused by the failure, unless the failure was substantially justified

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or other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(b)(2)(C).

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“In determining an appropriate sanction for failure to comply with a discovery order or attend a

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scheduled deposition, the court examines five factors: (1) the public’s interest in the expeditious
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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to non13
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offending party; (4) the public policy favoring disposition of cases on the merits; and (5) availability of
less drastic sanctions.” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006).
III. DISCUSSION

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The parties present one issue: (1) whether Wal-Mart’s answer regarding liability should be

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stricken.

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1.

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Wal-Mart’s Answer With Regard to Liability is Not Stricken
Wal-Mart’s conduct in the instant action does not merit the striking of its answer as to liability.

Contrary to Wilson’s position, Wal-Mart is not obstructing discovery in an effort to avoid litigation on
the merits; the parties had, and continue to have, genuine discovery disputes. The following Leon

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factors weigh in favor of not striking Wal-Mart’s answer: (1) Wal-Mart has not disobeyed a discovery
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order in this action, (2) Wilson fails to show how she would be prejudiced by the requirement that she
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establish Wal-Mart’s liability, and (3) public policy favors disposition on the merits on the issue of Wal1
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Mart’s liability.
Wilson next relies on Wal-Mart’s alleged history of discovery abuses in state and federal court

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actions across the country to justify the striking of Wal-Mart’s answer as to liability. Wilson’s reliance

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is misplaced. While the court may levy sanctions based on its inherent authority to respond to abusive

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litigation practices or on a party’s failure to obey a discovery order, the court only considers a party’s

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conduct in the action before it. See Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006). Wal-

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Mart’s alleged misconduct in other actions is irrelevant on the issue of whether its answer as to liability,

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in this action, should be stricken.
ACCORDINGLY, and for good cause shown,

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IT IS HEREBY ORDERED that Wilson’s Motion to Strike (Doc. #20) is DENIED.
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IT IS SO ORDERED.
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DATED this 7th day of March, 2016.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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