Basile v. Southwest Airlines Company

Filing 141

ORDER. IT IS ORDERED that 122 the Report and Recommendation is ACCEPTED and ADOPTED in full. IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE. All pending motions are denied. The Clerk of Court is instructed to enter judgment accordingly and close this case. Signed by Judge Richard F. Boulware, II on 7/10/2018. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

CONSTANTINO BASILE,

10
11
12
13

Case No. 2:15-cv-01883-RFB-VCF

Plaintiff,
v.

ORDER

SOUTHWEST AIRLINES CO., et al,
Defendants.

14
15

This action, filed by Plaintiff Constantino Basile (“Plaintiff”) was commenced on October

16

1, 2015. (ECF No. 1). In the operative Amended Complaint (ECF No. 56), Plaintiff asserts the

17

following causes of action against Defendant Southwest Airlines Company (“Defendant”): (1)

18

defamation; (2) recklessness; (3) intentional infliction of severe emotional distress; (4) breach of

19

implied contract; (5) breach of implied covenant of good faith and fair dealing; and (6) civil

20

conspiracy. The Court held a hearing on Defendant’s Motion to Dismiss (ECF No. 58) on March

21

6, 2017, and dismissed on the record all of Plaintiff’s claims except the defamation claim.

22

Plaintiff filed a Motion for Reconsideration (ECF No. 74) and both parties filed Motions

23

for Summary Judgment (ECF Nos. 78, 85). On January 27, 2018, the Court denied these motions,

24

and reopened discovery for a period of 75 days, and shortly thereafter ordered the parties’

25

appearance at a hearing regarding discovery. (ECF No. 99). The hearing was held on February 6,

26

2018. At the hearing, the Court provided guidance to the parties regarding the depositions of

27

several Southwest employees. The Court also permitted Defendant to file a motion to compel

28
1

1

neuropsychological examination of Plaintiff. 1 On February 21, 2018 Defendant filed the Motion

2

to Compel. (ECF No. 108). Plaintiff filed a Response on February 26, 2018. (ECF No. 111).

3

Defendant filed a Reply on March 2, 2018. (ECF No. 113). Magistrate Judge Cam Ferenbach

4

granted the motion on March 14, 2018, and also ordered Plaintiff to respond to Defendant’s

5

Interrogatories 1-2 and 7-14 by March 30, 2018. (ECF No. 114). The neuropsychological

6

examination was set to take place beginning at 9:00am on April 7, 2018. Following Plaintiff’s

7

failure to complete the examination, on April 10, 2018, Defendant filed a Motion for Sanctions or

8

Alternatively Motion to Limit Testimony. (ECF No. 115). The same day, Plaintiff filed a Motion

9

to Compel. (ECF No. 116). Plaintiff filed a Response to the Motion for Sanctions on April 23,

10

2018. (ECF No. 118). Defendant filed a Reply on April 26, 2018. (ECF No. 121). Magistrate Judge

11

Ferenbach entered a Report and Recommendation on May 3, 2018, recommending that

12

Defendant’s [115] Motion be granted and Plaintiff be precluded from presenting evidence at trial

13

regarding any damages related to his mental state. (ECF No. 122). In the order, Magistrate Judge

14

Ferenbach also denied Plaintiff’s Motion to Compel. Objections to the Report & Recommendation

15

were due on May 17, 2018. No objections were filed.

16

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

17

recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). A party may file specific

18

written objections to the findings and recommendations of a magistrate judge. 28 U.S.C. §

19

636(b)(1); Local Rule IB 3-2(a). When written objections have been filed, the district court is

20

required to “make a de novo determination of those portions of the report or specified proposed

21

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Local

22

Rule IB 3-2(b). Where a party fails to object, however, a district court is not required to conduct

23

“any review,” de novo or otherwise, of the report and recommendations of a magistrate judge.

24

Thomas v. Arn, 474 U.S. 140, 149 (1985).

25

Although Plaintiff failed to file objections to the Report & Recommendation, the Court has

26

nonetheless reviewed the record in this case and concurs with Judge Ferenbach’s recommendation

27
28

1

At the hearing, Plaintiff consented to undergoing the examination.

2

1

to grant Defendant’s Motion for Sanctions and deny Plaintiff’s Motion to Compel. The Court also

2

imposes an additional sanction, and now precludes Plaintiff from proceeding on presumed

3

damages. Federal Rule of Civil Procedure 37(b)(2) permits the Court to impose a variety of

4

sanctions, including prohibiting a disobedient party from supporting its claims or introducing

5

evidence, due to a party’s failure to obey a discovery order, such as an order under Rule 35.

6

Plaintiff asserts a claim for defamation per se, and damages are typically presumed for such claims.

7

See Pope v. Motel 6, 114 P.3d 277, 282 (Nev. 2005) (finding that “[a] false statement involving

8

the imputation of a crime has historically been designated as defamatory per se” and therefore

9

proof of damages is not required). However, the Court finds it appropriate to prohibit Plaintiff

10

from asserting presumed damages. Plaintiff, as conceded at hearings in this case, has no expert

11

testimony or other testimony or evidence of presumed damages besides his own assertions of

12

alleged mental anguish. The success of Plaintiff’s defamation per se claim therefore rests on his

13

credibility, which Defendants cannot now meaningfully challenge due to Plaintiff’s failure to

14

complete the neurological examination. The Court also agrees with Judge Ferenbach’s finding that

15

ordering Plaintiff to complete another examination would be fruitless, and would serve only to

16

further delay a case in which Plaintiff has repeatedly been uncooperative.

17

Because there is no means for Plaintiff to prove actual damages or assert presumed

18

damages, the Court finds that Plaintiff cannot establish a defamation claim and therefore dismissal

19

of this action is warranted. The Court does not lightly impose this further sanction, but finds that

20

Plaintiff’s conduct throughout this litigation and culminating in his unilateral termination of the

21

neurological examination warrants dismissal. At multiple stages in this case, Plaintiff has

22

disregarded this Court’s orders and the Federal Rules of Civil Procedure and engaged in litigation

23

conduct pursuant to his own whim. Based upon the Court’s own observations of Plaintiff in

24

hearings, the Court finds credible Defendant’s contention that Plaintiff has continued to refuse to

25

engage in meaningful and required conference on litigation issues.

26

On March 28, 2017, the Court entered a Discovery Plan and Order with clear instructions

27

to the parties on setting depositions. (ECF No. 82). This Discovery Plan and Order incorporated

28

the oral rulings and instructions issued by the Court on March 6, 2017. (ECF No. 70). While it is
3

1

not the Court’s normal practice to permit parties to conduct depositions at the courthouse, the Court

2

made an exception to accommodate the parties as the Defendant had legitimately raised concerns

3

about Plaintiff’s conduct given his interactions with its employees. However, before having sat for

4

a deposition or conducting any discovery, Plaintiff filed a Motion for Summary Judgment on

5

March 27, 2017. (ECF No. 78). Plaintiff was deposed in May 2017, but did not conduct the

6

depositions of the witnesses he sought to depose. The Court had set depositions despite

7

Defendant’s objections and the Court had set forth special procedures for the taking of the

8

deposition. Plaintiff refused to respond to Defendant’s communications about the taking of the

9

depositions. However, as Plaintiff is representing himself and given his claims scheduling

10

difficulties, the Court reopened discovery over the Defendant’s objection for 75 days on January

11

27, 2018. (ECF No. 99). The Court held a hearing on February 6, 2018 to ensure that the parties

12

understood the Court’s order on discovery. (ECF No. 109). Despite this guidance, Plaintiff

13

willfully failed to meaningfully participate in the neuropsychological examination, and unilaterally

14

terminated it.

15

The Court recognizes that “dismissal is a harsh penalty and, therefore, it should only be

16

imposed in extreme circumstances.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), as

17

amended (May 22, 1992) (citation omitted). In applying the five-factor test set forth by the Ninth

18

Circuit, the Court finds that this case presents the extreme circumstances warranting dismissal. Id.

19

at 1260-61 (“In determining whether to dismiss a case for failure to comply with a court order the

20

district court must weigh five factors including: ‘(1) the public’s interest in expeditious resolution

21

of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;

22

(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less

23

drastic alternatives.’”) (citation omitted). The Court finds that these factors weigh in favor of

24

dismissal. This case has been litigated for nearly three years, and Plaintiff has caused delays at

25

multiple junctures. Both the public interest and judicial economy are served by dismissing this

26

case. Defendant is prejudiced in part because, as discussed above, Defendant cannot adequately

27

prepare its defense to damages without the results from the neuropsychological examination.

28

Further, a presumption of injury arises from the occurrence of unreasonable delay in filing a
4

1

pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522,

2

524 (9th Cir. 1976). The public policy favoring disposition of cases on their merits has been

3

satisfied; not only has this action survived a Motion to Dismiss, the Court has permitted multiple

4

rounds of summary judgment briefing and reopened discovery in light of Plaintiff’s scheduling

5

difficulties and in recognition of the challenges faced by pro se litigants. Finally, the Court need

6

not further consider alternatives where it has already implemented them. Ferdik, 963 F.2d at 1262.

7

Plaintiff filed a Motion for Summary Judgment without conducting any discovery, before his own

8

deposition even took place, and in disregard of the Court’s oral instructions. Rather than dismissing

9

the action, the Court denied both parties’ motions for summary judgment, provided renewed

10

guidance to the parties in a written Order, and set a hearing to permit the parties to request any

11

additional clarification they needed.

12

The Court must be able to “manage [its] docket[ ] without being subject to the endless

13

vexatious noncompliance of litigants like [Plaintiff].” Id. at 1261. While the sanction of dismissal

14

should rarely be imposed, this matter is one in which such sanction is warranted.

15

IT IS THEREFORE ORDERED that the Report and Recommendation (ECF No. 122)

16

is ACCEPTED and ADOPTED in full. Plaintiff is precluded from presenting evidence regarding

17

damages related to his mental state, and is further precluded from asserting presumed damages.

18

IT IS FURTHER ORDERED that this action is DISMISSED WITH PREJUDICE.

19

Because Plaintiff has no means of establishing damages, he cannot prevail on his sole claim of

20

defamation. All pending motions are denied. The Clerk of Court is instructed to enter judgment

21

accordingly and close this case.

22
23

DATED: July 10, 2018.
______________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
5