Bristol v. Hughes et al

Filing 34

REPORT AND RECOMMENDATION. IT IS HEREBY RECOMMENDED that 1 Plaintiff's Complaint be stricken, and Plaintiff's claim be dismissed with prejudice for failure to comply with the Court's order. Objections to R&R due by 9/6/2017. Signed by Magistrate Judge Carl W. Hoffman on 8/23/7. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GABRIEL M. BRISTOL,

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Plaintiff,
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v.
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ELIZABETH JOAN HUGHES,
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Defendant.
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_______________________________________ )

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Case No. 2:16-cv-00705-JCM-CWH

REPORT & RECOMMENDATION

This matter is before the Court due to Plaintiff and Counter Defendant Gabriel M. Bristol’s

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failure to comply with the Court’s order (ECF No. 26) and order to show cause (ECF No. 32).

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I.

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Background
On June 21, 2017, Defendant and Counter Claimant Elizabeth Joan Hughes filed a proposed

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discovery plan and scheduling order (ECF No. 20), in which she represented that Plaintiff was

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unresponsive to Defendant’s attempts to draft a discovery plan. Based on these representations, the

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Court scheduled a hearing. Subsequently, the Court granted Plaintiff’s counsel’s motion to withdraw

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(ECF No. 22). At the hearing (ECF No. 26), Plaintiff represented that he planned to hire new

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counsel, and requested time to do so before filing a discovery plan. The Court ordered Plaintiff to

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have new counsel file a notice of appearance and submit a proposed discovery plan and scheduling

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order no later than July 25, 2017. To date, Plaintiff has not submitted a discovery plan, filed a notice

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of appearance of new counsel, or make any further filings in this matter.

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On August 2, 2017, this Court entered an Order to Show Cause (ECF No. 32), requiring

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Plaintiff to show in writing no later than August 17, 2017 why he failed to comply with the Court’s

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previous order. To date, Plaintiff has not responded to the Order to Show Cause.

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II.

ANALYSIS

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The underlying purpose of the Federal Rules of Civil Procedure is to “secure the just, speedy,

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and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The rules provide

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several mechanisms that allow courts to accomplish this goal through the use of sanctions against

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parties that fail to comply with court orders or that unnecessarily multiply proceedings. Federal Rule

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of Civil Procedure 16 is the central pretrial rule that authorizes courts to manage their cases “so that

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disposition is expedited, wasteful pretrial activities are discouraged, the quality of the trial is

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improved, and settlement is facilitated.” In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d

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1217, 1227 (9th Cir. 2006). Specifically, Rule 16(f) “puts teeth into these objectives by permitting

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the judge to make such orders as are just for a party’s failure to obey a scheduling or pretrial order,

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including dismissal.” Id. Rule16(f) provides in relevant part that “[o]n motion or on its own, the

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court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or

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its attorney . . . fails to appear at a scheduling or other pretrial conference . . . or fails to obey a

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scheduling order or other pretrial order.” Fed. R. Civ. P. 16(f)(1).
Potential sanctions under Rule 37(b)(2)(A) include striking pleadings and rendering a default

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judgment against the disobedient party. Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi). “A court must

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consider the following five factors before striking a pleading or declaring default: (1) the public’s

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk

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of prejudice to the other party; (4) the public policy favoring the disposition of cases on their merits;

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and (5) the availability of less drastic sanctions.” Hester v. Vision Airlines, Inc., 687 F.3d 1162,

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1169 (9th Cir. 2012) (quotation omitted). Only “willfulness, bad faith, or fault of the party” justify

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terminating sanctions. Id. (quotation omitted). It is within the court’s discretion whether to impose

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discovery sanctions. Id.

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Here, the first two factors, the public’s interest in expeditiously resolving this litigation and

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the court’s interest in managing its docket, weigh in favor of terminating sanctions. Plaintiff has

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completely disengaged from participation in this case, as demonstrated by its failure to initiate a

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scheduling conference, draft a scheduling order, comply with the Court’s orders, or to respond to the

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Court’s Order to Show Cause. Plaintiff’s repeated failures to comply with the court’s orders are

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inconsistent with Rule 1’s directive to “secure a just, speedy, and inexpensive” determination of this

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action. Plaintiff’s inaction have also interfered with the Court’s management of its docket,

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multiplied these proceedings, and have squandered the Court’s resources.

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The third factor and fourth factors, risk of prejudice to the other parties and the public policy

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favoring disposition of cases on their merits, also weigh in favor of terminating sanctions. Plaintiff’s

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failure to comply with the court’s orders have made it impossible for this case to move forward. See

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United States v. High Country Broad., 3 F.3d 1244, 1245 (9th Cir. 1993) (per curiam). Plaintiff’s

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failure to respond to the Court’s orders also are prejudicial to the other parties, who are entitled to

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conduct discovery, proceed to trial, and obtain a rightful decision in this case.

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Finally, sanctions less drastic than terminating sanctions are unavailable because Plaintiff has

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refused to comply with multiple orders. Given Plaintiff’s failure to comply with past orders, the

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Court has no reason to believe he would comply with future orders.

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Given that these factors all weigh in favor of terminating sanctions, the Court will

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recommend that Plaintiff’s Complaint (ECF No. 1) be stricken as a sanction for his failure to comply

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with the Court’s orders. Defendant’s Counterclaim will proceed according to the scheduling order

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currently in effect (ECF No. 30).

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RECOMMENDATION
IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint (ECF No. 1) be stricken, and
Plaintiff’s claim be dismissed with prejudice for failure to comply with the Court’s order.

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NOTICE

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Pursuant to Local Rule IB 3-2, any objection to this Finding and Recommendation must be in

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writing and filed with the Clerk of the Court within fourteen (14) days. The Supreme Court has held

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that the courts of appeal may determine that an appeal has been waived due to the failure to file

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objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also

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held that (1) failure to file objections within the specified time and (2) failure to properly address and

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brief the objectionable issues waives the right to appeal the District Court’s order and/or appeal

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factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir.

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1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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DATED: August 23, 2017

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_________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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