Phillips v. Mayes

Filing 107

ORDER ON PENDING MOTIONS - granting 77 Defendant's Rule 35 Motion ; granting in part and denying in part 79 Defendant's Motion to Dismiss pursuant to Rule 37 and 41, by Judge Ricardo S Martinez.(MD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CHRIS PHILLIPS,
Plaintiff,

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v.

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CASE NO. C10-2067RSM
ORDER ON PENDING MOTIONS

LARRY MAYES AND HIS MARITAL
COMMUNITY,

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Defendant.
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This matter is before the Court for consideration of two motions filed by defendant: a Rule 35

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motion for a physical examination, and a Rule 37 and Rule 41 motion to dismiss as a sanction for

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plaintiff’s litigation conduct. Dkt. ## 77, 79. Plaintiff has opposed both motions, and has moved to

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strike certain exhibits attached to defendant’s declaration. Dkt. # 102. The Court deferred ruling on the

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Rule 35 motion until it could consider the motion to dismiss. Dkt. # 86. Oral argument was held on

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November 4, 2011, with plaintiff appearing by telephone. Dkt. # 104. Having considered both motions,

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plaintiff’s response, defendant’s reply, and the balance of the record, the Court now makes the following

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summary rulings:

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ORDER - 1

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(1) Plaintiff’s Motion to Strike (Dkt. # 102)

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Plaintiff has moved to strike Exhibits A and D to the Declaration of John Fritts (Dkt. # 94),

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which are letters written to plaintiff by defense counsel or their staff. The motion is GRANTED as to

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Exhibit A, which was not written by Mr. Fritts, and DENIED as to Exhibit D, which is properly

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described as written by co-counsel Tom Schwanz. Plaintiff also moves to strike Exhibit A to the

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Declaration of Andrea Kato (Dkt. # 96). As to this exhibit, which is a copy of the Facebook page of

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plaintiff’s wife, the motion is GRANTED.

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(2) Defendant’s Rule 35 Motion (Dkt. # 77)

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Defendant has moved to compel plaintiff’s attendance at an independent medical examination

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(“IME”), pursuant to Fed.R.Civ.P. 35. This rule provides, in relevant part, that the Court may order a

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party “whose mental or physical condition . . . is in controversy to submit to a physical or mental

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examination by a suitably licensed or certified examiner.” Fed.R.Civ.P. 35(a). Pursuant to this rule,

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defendant served on plaintiff a Notice of Physical Examination on September 21, 2011, directing him to

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appear in Seattle on October 12, 2011 for an examination by John Hamm, M.D. Declaration of Morgan

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Smith, Dkt. # 78, Exhibit 3. Anticipating that plaintiff may decline to appear on that day, defendant

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then filed this motion, noting it in time for the Court to rule and direct plaintiff to appear. In light of the

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pending motion to dismiss, however, the Court declined to rule on this motion, because a ruling on the

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motion to dismiss could render it moot. Dkt. # 86.

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that the case shall not be dismissed at this time, it shall now rule on the Rule 35 motion.

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As the Court has determined, as set forth below,

Plaintiff has opposed the motion on the basis that defendant’s disclosure of Dr. Hamm as an

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expert witness was late. Defendant responds that he is a rebuttal witness and disclosure is not late. The

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Court finds that there is no question that defendant is entitled to conduct a Rule 35 examination.

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Therefore, to whatever extent necessary, the Court shall grant an extension of discovery and disclosure

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deadlines for the limited purpose of allowing defendant’s expert to conduct an independent medical

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exam of plaintiff.

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Defendant’s motion to compel a Rule 35 examination (Dkt. # 77) is accordingly GRANTED, as

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set forth in greater detail below.

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ORDER - 2

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(3) Defendant’s Motion to Dismiss Pursuant to Rules 37 and 41 (Dkt. # 79)

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Defendant has moved to dismiss the complaint and action as a sanction for plaintiff’s failure to

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comply with Court orders and the Federal Rules of Civil Procedure. Among the acts cited by defendant

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are plaintiff’s failure to provide discovery and his failure to pay a Court-ordered award of fees and costs

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of $2570.50 for defendant’s success in a motion to compel (Dkt. # 75). In reply to the motion,

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defendant added the additional grounds of plaintiff’s failure to appear for his October 11, 2011 and

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October 17, 2011 depositions, his unilateral striking of a deposition of plaintiff’s expert Dr. Cohen, and

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his refusal to accept communication by e-mail, fax, U.S. mail, and telephone.

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These matters were discussed at the November 4, 2011 hearing on the motion. Plaintiff

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responded, in effect, that he has provided over 17,000 pages of discovery, that his desperate financial

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condition prevents him from paying the fee award, and that flying to Seattle on short notice for a

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deposition is expensive and inconvenient. He did state in his opposition papers that he had made a

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“good faith effort” to pay, but could not identify that effort at the hearing. Dkt. # 89, p. 1. With respect

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to the communication issues, he stated that his e-mail account was shut down by the provider, Yahoo,

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who suspected him of being a “spammer.” He stated that he had never avoided telephone calls, that

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defendant “knew” he was at an alternate location in Boston during the relevant period, and that

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defendant used his home phone number instead of his fax number when attempting to communicate by

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fax. The Court notes that it was aware of plaintiff’s e-mail difficulties, as e-mails from the Court were

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returned undelivered on numerous occasions throughout October 2011. Court staff contacted plaintiff

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by telephone to inquire about this on October 5, 2011. Plaintiff was not available, but later returned the

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call. Subsequently, on or about October 12, 2011, Court staff attempted to call plaintiff to advise him of

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the scheduled hearing, and no one answered. As plaintiff’s e-mail was not functioning at that time,

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notice of the hearing was sent to plaintiff by registered mail. Dkt. # 90.

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Pursuant to Rule 37, sanctions available for a party’s failure to obey an order to provide

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discovery, or to attend a deposition, include prohibiting the disobedient party from supporting his claims

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or from introducing designated matters into evidence, striking pleadings in whole or in part, staying

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further proceedings, and dismissing the action in whole or in part. Fed.R.Civ.P. 37(b)(2)(A) (ii) - (v);

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ORDER - 3

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Fed.R.Civ.P. 37(d)(3).

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to comply with the Federal Rules of Civil Procedure, or to obey a Court order. Fed.R.Civ.P. 41(b).

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However, “dismissal is a harsh penalty and, therefore, it should only be imposed in extreme

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

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Before ordering such a sanction, the Court must consider five factors: “(1) the public's interest in

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expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to

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

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of less drastic alternatives. ” Yourish v. California Amplifier, 191 F. 3d 983, 990 (9th Cir. 1999)

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(quoting Ferdik, 963 F. 2d at 1261. The Court should also consider the presence of willfulness, bad

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faith, or fault by the offending party. Halaco Engineering Co. v. Costle, 843 F.2d 376 (9th Cir. 1988).

Rule 41 provides for dismissal of an action for plaintiff’s failure to prosecute,

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The Court now finds, as set forth above, that plaintiff has failed to comply with discovery orders,

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failed to pay a sanction ordered, failed to continuously maintain a telephone number and e-mail address

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at which the Court and opposing counsel may contact him, and failed to attend his properly noticed

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deposition. Sanctions are appropriate, but the Court finds that sanctions less drastic than dismissal are

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available and appropriate at this time. Therefore, it is not necessary to address all the factors set forth

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above. The Court makes no findings as to plaintiff’s willfulness or bad faith at this time, leaving that

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determination to a later time if it becomes necessary.

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Defendant’s motion for sanctions is accordingly GRANTED IN PART and DENIED IN PART.

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It is DENIED in that the Court declines to dismiss the action at this time. It is GRANTED in that the

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Court now imposes the following conditions upon plaintiff for the continuation of this action:

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(1) No evidence which has not already been produced by plaintiff in usable form may be used by
plaintiff in support of his claims, whether on summary judgment or at trial;
(2) Within ten (10) days of the date of this Order, plaintiff shall identify at least five (5) separate

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two-day blocks of time when he can travel to Seattle to attend his deposition and his Rule 35

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independent medical examination, which shall take place on successive days. The discovery cut-off

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date shall be extended to January 12, 2012, solely for the purpose of plaintiff’s and Dr. Cohen’s

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depositions and plaintiff’s IME, so no dates after January 12, 2012 can be selected by plaintiff.

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ORDER - 4

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Defendant may, solely at defendant’s discretion, stipulate to a later cutoff date if necessary to

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accommodate Dr. Hamm’s availability or defense counsel’s schedule. Once plaintiff has identified his

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dates of availability, defendant shall provide at least one week’s notice to plaintiff for the deposition and

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IME. One week’s notice shall be deemed reasonable in light of the leave given plaintiff to select the

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dates when he can be available.

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(3) Defendant shall be allowed an opportunity to depose Dr. Cohen, or her report shall be

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excluded as evidence on plaintiff’s behalf. Such deposition may take place at such time as plaintiff is

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already in Seattle for his own deposition and IME. If Dr. Cohen is not available at that time, her

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deposition may occur at such other time as she is available, and plaintiff may appear by telephone.

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(4) Plaintiff shall, beginning December 15, 2011, make monthly payments of $200 toward the

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Court-ordered Rule 37 sanction for attorneys’ fees and costs of $2570.50. Payments shall be made on

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the 15th day of each succeeding month until paid. Plaintiff shall take care to ensure that he posts the

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payment sufficiently ahead of time that it can timely reach defendant. Plaintiff’s alleged indigence is

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no excuse for failure to pay; it is a matter of record that he has disability income amounting to more than

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$3000 per month. He has initiated this lawsuit and is responsible for prioritizing his income to cover

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expenses that may be incurred as it progresses.

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(5) Plaintiff shall maintain a current e-mail address and shall provide a telephone at which he can

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be reached, or a recorded message left, between the hours of 8:00 a.m. and 3:00 p.m., Pacific time, on

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weekdays.

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In the event plaintiff fails to comply with any of these conditions, the Court shall entertain a
renewed motion for the sanction of dismissal.

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DATED: November 22, 2011.

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER - 5