Wysocki v. Dourian

Filing 17

ORDER granting in part and denying in part 14 Motion for Sanctions re Discovery. Signed by Magistrate Judge Nancy J. Koppe on 9/11/2017. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DALE WYSOCKI,
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Plaintiff(s),
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vs.
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DIKRAN DOURIAN,
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Defendant(s).
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Case No. 2:17-cv-00333-JAD-NJK
ORDER
(Docket No. 14)

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Pending before the Court is Defendant Dikran Dourian’s motion for sanctions. Docket No. 14.

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A response to Defendant’s motion for sanctions was due on or before September 1, 2017; however,

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Plaintiff failed to respond. The Court may, therefore, grant the motion as unopposed. Local Rule 7-2(e).

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For the reasons discussed more fully below, the Court GRANTS the motion in part and DENIES the

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motion in part.

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I.

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OVERVIEW
Defendant’s motion is predicated on numerous discovery violations committed by Plaintiff’s

counsel. Most significantly, those discovery violations include the following:
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The parties’ initial disclosures were due on or before March 24, 2017. Docket No. 9 at
4. To date, Plaintiff has not provided his initial disclosures. Docket No. 14 at 3, 13.

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Defendant served Plaintiff with the First Set of Interrogatories and First Set of Requests

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for Production on June 12, 2017. Docket No. 14-1, 14-2, 14-3. To date, Plaintiff has not

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provided responses to either. Docket No. 14 at 5.

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Defendant’s counsel notified Plaintiff’s counsel of the over-due initial disclosures and

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requested receipt no later than June 23, 2017 and July 14, 2017. Docket No. 14-5 at 2

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14-6 at 2, 14-8 at 2, 14-10 at 2.

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Although Plaintiff’s counsel stated he would provide initial disclosures and responses

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to written discovery the week of July 24, 2017, no disclosures or responses were

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provided. Docket No. 14 at 5.

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Defendant has requested that the Court dismiss Plaintiff’s Complaint, or in the alternative,

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compel initial disclosures and responses to Defendant’s first set of written discovery, with objections

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waived, as well as Defendant’s reasonable attorneys’ fees and costs incurred in bringing this motion.

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Id. at 10.

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II.

STANDARDS

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A. Initial Disclosures and Written Discovery

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Rule 26(a)(1)(A) requires parties to provide initial disclosures to the opposing parties without

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awaiting a discovery request as a way to “assist the parties in focusing and prioritizing their organization

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of discovery.” City & County of San Francisco v. Tutor-Saliba Corp., 218 F.R.D. 219, 221 (N.D. Cal.

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2003). Unless the Court or parties provide otherwise, initial disclosures must be made within 14 days

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following the Fed. R. Civ. P. 26(f) conference. See Fed. R. Civ. P. 26(a)(1)(C). Failure to provide

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disclosures under Rule 26(a) provides grounds for a party to “move to compel disclosure and for

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appropriate sanctions.” Fed. R. Civ. P. 37(a)(3)(A). Responses to interrogatories and requests for

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production must be made, along with any objections, “within 30 days after being served.” Fed. R. Civ.

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P. 33(b)(2), 34(b)(2). Failure to respond to discovery requests under Fed. R. Civ. P. 33 and 34 provides

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grounds for an order compelling an answer, production, or sanctions.

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37(a)(3)(B)(iii-iv), 37(d)(A)(ii).

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Fed. R. Civ. P.

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B. Sanctions

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

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speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. As the text

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of Fed. R. Civ. P. 1 now makes explicit, the duty to strive toward that goal is shared by the Court and

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the parties. See id. It is with that charge as a guide that this Court construes and administers the Rules.
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There are several mechanisms by which this goal can be accomplished, including entering case-

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dispositive sanctions against a party who fails to comply with the Rules or unnecessarily multiplies the

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proceedings.

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Rule 16 of the Federal Rules of Civil Procedure is a central pretrial rule that authorizes the Court

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to manage cases “so that disposition is expedited, wasteful pretrial activities are discouraged, the quality

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of the trial is improved, and settlement is facilitated.” In re Phenylpropanolamine Prods. Liability

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Litig., 460 F.3d 1217, 1227 (9th Cir.2006). “Subsection (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.” Id.

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Rule 16(f) specifically provides that “the court may issue any just orders, including those authorized by

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Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney ... fails to obey a scheduling order or other pretrial

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order.” Fed. R. Civ. P. 16(f)(1)(C).1

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Fed. R. Civ. P. 37 governs discovery disputes and sanctions stemming therefrom. Similar to

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Rule 16, Rule 37 provides for sanctions against a party that fails to comply with discovery orders: “[i]f

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a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35,

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or 37(a), the court where the action is pending may issue further just orders.” Fed. R. Civ. P.

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37(b)(2)(A). Issuance and violation of a discovery order is not a prerequisite to the imposition of

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sanctions, however. See Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (“[The] argument that

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an order to compel discovery is a prerequisite to dismissal is without merit”). Instead, the Court may

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impose sanctions on a party who, inter alia, fails to respond to properly served interrogatories or

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requests for production. See Fed. R. Civ. P. 37(d)(1)(A)(ii). Once again, a panoply of potential

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sanctions is envisioned, including those enumerated in Rule 37(b)(2)(A). “Dismissal is a proper

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sanction under Rule 37(d) for a serious or total failure to respond to discovery even without a prior

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order.” Sigliano, 642 F.2d at 310.

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The Court has “great latitude” in fashioning sanctions pursuant to Fed. R. Civ. P. 37. See Lew

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v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir .1985). In appropriate situations, the Court may find that

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Fed. R. Civ. P. 37(b)(2)(A) in turn enumerates several potential sanctions, up to and including casedispositive sanctions.
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a severe sanction is necessary to prevent some benefit to the sanctioned party. See National Hockey

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League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 642 (1976) (finding that extreme sanction of

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dismissal was appropriate due to respondents' flagrant bad faith and their counsel's callous disregard of

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responsibilities). At the same time, a case-dispositive sanction is a harsh penalty reserved for extreme

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circumstances. See Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011).

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The Ninth Circuit has constructed a five-factor analysis to determine whether a case-dispositive

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sanction under Rule 37 is just: (1) the public's interest in expeditious resolution of litigation; (2) the

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court's need to manage its docket; (3) the risk of prejudice to the other party; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Hester

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v. Vision Airlines, Inc., 687 F.3d 1162, 1169 (9th Cir.2012). With respect to this final consideration,

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the Ninth Circuit looks to (1) whether this Court considered lesser sanctions; (2) whether it tried lesser

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sanctions; and (3) whether it warned the recalcitrant party about the possibility of case-dispositive

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sanctions. See, e.g., Hester, 687 F.3d at 1170. It is not always necessary to impose less severe sanctions

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first, or to give any explicit warning that a case-dispositive sanction may be imposed. Valley Eng'rs Inc.

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v. Electric Eng'g Co., 158 F.3d 1051, 1057 (9th Cir.1998). Indeed, courts may consider all of the

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offending party’s discovery conduct when making its determination of the appropriate sanction. Henry,

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983 F.2d at 947. However, the disobedient party's conduct must be due to willfulness, fault, or bad faith

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for a case-dispositive sanction to be appropriate. Id. at 946–47.

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The test provides courts with a way to think about what to do rather than a set of conditions

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precedent for imposing sanctions. Valley Eng'rs, 158 F.3d at 1057.

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III.

ANALYSIS

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The Court agrees with Defendant that Plaintiff’s discovery violations have been significant and

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numerous. In evaluating the relevant factors, however, the Court concludes that dismissal is not the

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proper sanction in this instance. Most significantly, the Court is most mindful that less drastic sanctions

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are available that are better tailored to addressing the discovery sanctions at issue. The Court finds that

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these sanctions, as outlined below, are the appropriate relief in this instance.

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A.

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As noted above, initial disclosures were due in this case on March 24, 2017. Docket No. 9 at

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4. Defendant’s counsel requested the over-due disclosures from Plaintiff’s counsel four times: June 12,

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2017 (Docket No. 14-5 at 2), July 5, 2017 (Docket No. 14-6 at 2), July 10, 2017 (Docket No. 14-8 at 2),

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and July 27, 2017 (Docket No. 14-10 at 2). Despite these requests and Defendant’s counsel’s flexibility,

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Plaintiff has not made his initial disclosures. Docket No. 14 at 5. The Court therefore GRANTS

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Defendant’s request to compel production of Plaintiff’s initial disclosures.

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B.

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Plaintiff’s Failure to Provide Initial Disclosure

Plaintiff’s Failure to Respond to Defendant’s Request for Interrogatories and Request for
Production of Documents

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Defendant served Plaintiff with the First Set of Interrogatories and Request for Production of

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Documents on June 12, 2017. Docket No. 14-1, 14-2, 14-3. Therefore, Plaintiff’s responses were due

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no later than July 12, 2017. Plaintiff’s counsel stated he had reviewed the requests and planned to

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deliver responses to Defendant during the week of July 24, 2017. Docket No. 14-9 at 2. Despite

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Defendant’s counsel’s request, extension of the due date to July 28, 2017, and suggestion that motion

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for sanctions would be filed if responses were further delayed, see Docket No. 14 at 4, Plaintiff has

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failed to respond to the Interrogatories and Request for Production. The Court therefore GRANTS

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Defendant’s request to compel Plaintiff’s response.

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IV.

CONCLUSION

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In light of the severe nature of the dismissal sanctions sought, the lack of a previous warning of

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the possibility of dismissal sanctions, and the availability of less drastic sanctions, the Court declines

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to recommend dismissal of Plaintiff’s case through the pending motion. Further, for the reasons stated

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above, the Court GRANTS Defendant’s motion to compel production of Plaintiff’s initial disclosures

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and responses to written discovery. The Court ORDERS Plaintiff to provide initial disclosures pursuant

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to Fed. R. Civ. P. 26(a)(1) and respond to Defendant’s first set of written discovery requests, waiving

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all objections, no later than September 25, 2017. Upon receiving Plaintiff’s initial disclosures and

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responses to written discovery, Defendant may request from the Court an order to supplement its expert

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disclosure, if necessary.

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Additionally, the Court GRANTS Defendant’s request for attorneys’ fees and costs incurred in

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bringing the pending motion. Fed. R. Civ. P. 37(c)(1)(A). The parties are encouraged to agree among

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themselves on an amount of expenses. If they are unable to do so, Defendant shall file a motion for

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attorneys’ fees and costs no later than September 20, 2017. This motion shall include all necessary

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documents to enable the Court to make an appropriate calculation.

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The motion for sanctions, Docket No. 14, is therefore GRANTED in part and DENIED in part.

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IT IS SO ORDERED.

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DATED: September 11, 2017

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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