Dinkins v. Schinzel

Filing 128

ORDER that 125 Motion for Sanctions is granted. FURTHER ORDERED that Defendant must amend her response to Plaintiff's Request for Production No. 45 to include a description of her inquiry to determine whether responsive documents exist as instructed in this Court's order no later than August 3, 2018. Signed by Magistrate Judge George Foley, Jr on 7/20/2018. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KENNETH DINKINS,

Case No. 2:17-cv-01089-JAD-GWF

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Plaintiff,
v.

ORDER

GERALDINE SCHINZEL,
Defendant[s].

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This matter is before the Court on Plaintiff’s Motion for Sanctions (ECF No. 125), filed on

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June 26, 2018. Plaintiff filed his Notice of Defendant’s Non-Opposition (ECF No. 127) on July

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11, 2018. To date, Defendant has not filed a response to Plaintiff’s Motion for Sanctions and the

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time for response has now expired.

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BACKGROUND

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Plaintiff requests sanctions against Defendant pursuant to Rule 37 of the Federal Rules of

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Civil Procedure for failing to comply with the Court’s discovery order instructing her to amend

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her response to Plaintiff’s Request for Production No. 45 in his fourth set of requests for

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production. On June 5, 2018, the Court granted Defendant’s counsel’s motion to withdraw and

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Defendant is now proceeding pro se. See ECF No. 122. On June 11, 2018, the Court granted in

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part, and denied, in part, Plaintiff’s motion to compel and instructed Defendant to amend her

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response to Plaintiff’s Request for Production No. 45 within fourteen days of the issuance of the

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order, to include a description of her inquiry to determine whether responsive documents exist.

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See ECF No. 123. Plaintiff represents that Defendant has failed to amend her response.

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DISCUSSION

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Rule 37(b) provides the court with a wide range of sanctions for a party’s failure to

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adequately engage in discovery or comply with discovery orders. “Discovery sanctions serve the
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objectives of discovery by correcting for the adverse effects of discovery violations and deterring

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future discovery violations from occurring.” Taylor v. Illinois, 484 U.S. 400, 425 (1988). The

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Court may exercise discretion in fashioning the appropriate sanctions for violations of a court

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order. Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1396 (9th Cir.1993). Von Brimer v.

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Whirlpool Corp., 536 F.2d 838, 844 (9th Cir.1976). The Court considers the objective of Rule

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16(f) to deter conduct that “unnecessarily consumes the Court's time and resources that could have

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been more productively utilized by litigants willing to follow the Court's procedures.” Martin

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Family Trust, 186 F.R.D. at 603.

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Plaintiff seeks an order entering default judgment as a sanction. Because the sanction of

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default judgment is drastic, courts must weigh five factors before entering default: (1) the public's

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interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the

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risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases

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on their merits; and (5) the availability of less drastic sanctions.” Henry v. Gill Indus., Inc., 983

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F.2d 943, 948 (9th Cir. 1993). “The first two of these factors favor the imposition of sanctions in

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most cases, while the fourth cuts against a ... dismissal sanction. Thus the key factors are prejudice

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and the availability of lesser sanctions.” Id.

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Defendant failed to amend her response as instructed by the Court and failed to respond to

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Plaintiff’s motion for sanctions. The Court, therefore, grants Plaintiff’s motion for sanctions.

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Having balanced the five factors, the Court, however, declines to enter an order of default judgment

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against Defendant. Defendant must amend her response to Plaintiff’s Request for Production No.

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45 to include a description of her inquiry to determine whether responsive documents exist as

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instructed in this Court’s order no later than August 3, 2018. See ECF No. 123. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Sanctions (ECF No. 125) is

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granted.
IT IS FURTHER ORDERED that Defendant must amend her response to Plaintiff’s

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...

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...

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Request for Production No. 45 to include a description of her inquiry to determine whether

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responsive documents exist as instructed in this Court’s order no later than August 3, 2018.

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Dated this 20th day of July, 2018.

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GEORGE FOLEY, JR.
UNITED STATES MAGISTRATE JUDGE

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