Johnson v. Wyndham Vacation Ownership Inc

Filing 86

ORDER granting Defendant's 82 Renewed Motion to Dismiss as a Discovery Sanction and denying Defendant's Third 85 Motion to Continue as moot, by Judge Robert S. Lasnik. Judgment shall be entered in favor of defendant and against plaintiff. (cc: Plaintiff via U.S. Mail) (KERR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DOUGLAS JOHNSON,
Plaintiff,

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NO. C15-766RSL
v.
WYNDHAM VACATION OWNERSHIP,
INC.,
Defendant.

ORDER GRANTING
DEFENDANT’S RENEWED
MOTION TO DISMISS AS A
DISCOVERY SANCTION

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This matter comes before the Court on “Defendant’s Renewed Motion to Dismiss as a

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Discovery Sanction,” Dkt. # 82, to which plaintiff has not responded. Having reviewed

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defendant’s briefing and the remainder of the record, the Court GRANTS defendant’s motion for

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the reasons that follow.

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BACKGROUND
Plaintiff Douglas Johnson filed suit against defendant Wyndham Vacation Ownership,

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Inc., claiming that defendant, his employer, had terminated his health benefits in retaliation for

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plaintiff’s EEOC complaints about race discrimination at work, thus violating the Employee

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Retirement Income Security Act (ERISA), 29 U.S.C. § 1140. Dkt. # 1. On November 24, 2015,

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defendant served plaintiff with its first set of interrogatories, requests for production, and

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requests for admission. Dkt. # 46-1 at 1–90, 53–64. On January 11, 2016, two weeks after

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plaintiff’s responses were due, defendant sent plaintiff a letter asking him to respond to the

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ORDER GRANTING DEFENDANT’S RENEWED
MOTION TO DISMISS AS A DISCOVERY SANCTION - 1

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discovery requests. Id. at 44–45. On February 24, 2016, defendant received plaintiff’s

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responses to defendant’s discovery requests and requests for admission. Id. at 46–52, 65–68.

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Plaintiff indicated that he would not sit for a deposition, and has not served defendant with his

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initial Rule 26(a)(1)(A) disclosures. Id. at 48, 4. Defendant moved for an order compelling

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plaintiff to provide more complete responses to its discovery requests, to sit for a deposition, and

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to provide his initial disclosures. Dkt. # 45.

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On July 11, 2016, the Court granted in part defendant’s motion to compel. The Court

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ordered plaintiff to respond completely to defendant’s discovery requests and requests for

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admission within 30 days, to sit for a deposition within 45 days, and to provide initial disclosures

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to defendant within 30 days. Dkt. # 58. The Court repeatedly cautioned plaintiff that failure to

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comply with any portion of its order would result in sanctions up to and including dismissal.

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In response, plaintiff moved to vacate the Court’s order compelling his compliance with

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defendant’s discovery requests. Dkt. # 59. The Court denied plaintiff’s motion on August 29,

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2016, and gave plaintiff an additional 30 days to comply fully with the July 11, 2016 order. Dkt.

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# 63. The Court reiterated that failure to comply would expose plaintiff to sanctions, including

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dismissal sanctions, and that “additional motions filed by plaintiff will not change this deadline.”

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Dkt. # 63 at 2.

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On October 6, 2016, defendant moved to dismiss as a discovery sanction and requested

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attorney’s fees, alleging that plaintiff had still failed to comply with the Court’s order. Dkt. #

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65. Plaintiff did not dispute that he had not complied with the Court’s orders; rather, plaintiff

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asserted that the discovery he had already provided was sufficient, and that defendant was

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intentionally making unrealistic discovery requests. Dkt. # 68. Plaintiff also moved for an order

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“compelling the defendant to reasonable scheduling.” Dkt. # 64. While finding that plaintiff’s

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noncompliance was willful, the Court nevertheless concluded that dismissal was too drastic and

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instead sanctioned plaintiff by awarding defendant the reasonable expenses incurred in filing its

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motion to compel. Dkt. # 72. Plaintiff moved for reconsideration of this order, Dkt. # 78, which

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ORDER GRANTING DEFENDANT’S RENEWED
MOTION TO DISMISS AS A DISCOVERY SANCTION - 2

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the Court denied, Dkt. # 81. Still, in light of plaintiff’s financial hardship, the Court reduced the

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requested fee award by 80% and awarded defendant $908.36 in fees and costs. Dkt. # 81.

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On January 5, 2017, defendant filed this renewed motion to dismiss as a discovery

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sanction, alleging that plaintiff has failed entirely to produce discovery or to respond to

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defendant’s attempts to schedule a deposition, as ordered by this Court.

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DISCUSSION

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Under Federal Rule of Civil Procedure 37(b)(2), the Court may impose sanctions for

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failure to obey an order to provide discovery. Permissible sanctions for a party’s failure to obey

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a discovery order include “dismissing the action or proceeding in whole or in part.” Fed. R. Civ.

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P. 37(b)(2)(A)(v). Defendant asks the Court to dismiss this action on that ground.
As before, the Court finds that plaintiff’s violations of this Court’s explicit orders were

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“due to willfulness, bad faith, or fault of the party.” Commodity Futures Trading Comm’n v.

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Noble Metals Int’l, Inc., 67 F.3d 766, 771 (9th Cir. 1995); see U.S. for Use & Ben. of Wiltec

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Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 603 n.5 (9th Cir. 1988) (same analysis applies

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to case-dispositive sanctions against either party).

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After finding willfulness, bad faith, or fault, the Court must weigh five factors in deciding

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whether dismissal is the appropriate sanction: (1) the public’s interest in expeditious resolution

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

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

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drastic sanctions. In re Phenylpropanolamine (PPA) Products Liab. Litig., 460 F.3d 1217, 1226

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(9th Cir. 2006) (internal quotation marks omitted). “[W]here a court order is violated, factors 1

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and 2 support sanctions and 4 cuts against case-dispositive sanctions, so 3 and 5, prejudice and

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the availability of less drastic sanctions, are decisive.” Valley Engineers Inc. v. Elec. Eng’g Co.,

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158 F.3d 1051, 1057 (9th Cir. 1998). Factor 5 encompasses three additional questions: “(1) Did

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the court explicitly discuss the feasibility of less drastic sanctions and explain why alternative

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sanctions would be inadequate? (2) Did the court implement alternative methods of sanctioning

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ORDER GRANTING DEFENDANT’S RENEWED
MOTION TO DISMISS AS A DISCOVERY SANCTION - 3

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or curing the malfeasance before ordering dismissal? (3) Did the court warn the plaintiff of the

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possibility of dismissal before actually ordering dismissal?” Malone v. U.S. Postal Serv., 833

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F.2d 128, 132 (9th Cir. 1987).

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The first two factors are often considered together. In re PPA Products Liab. Litig., 460

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F.3d at 1227. In this case, plaintiff’s failure to comply first with his discovery obligations and

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then with the Court’s order has led the Court to expend time and judicial resources addressing

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plaintiff’s discovery failures and has delayed the resolution of this action. The Court has

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extended the deadlines in this case three times and allowed plaintiff a significant amount of time

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to comply with its orders. Dkt. ## 58, 63, 72.

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As to the third factor, defendant has suffered prejudice as a result of plaintiff’s failure to

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provide discovery, including failure to provide information so fundamental that it is required to

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be provided in parties’ initial disclosures. See Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406,

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1412 (9th Cir. 1990) (“A defendant suffers prejudice if plaintiff’s actions impair the defendant’s

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ability to go to trial or threaten to interfere with the rightful decision of the case. . . . Failure to

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produce documents as ordered . . . is considered sufficient prejudice.”). Thus, the first three

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factors weigh in favor of dismissal.

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While the fourth factor – the public policy favoring disposition of cases on their merits –

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weighs against dismissal, upon consideration of the fifth factor, the Court concludes that

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dismissal of this case is appropriate. In its most recent order compelling discovery, the Court

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warned plaintiff that continued failure to comply would result in dismissal. Dkt. # 72. Plaintiff

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has not complied. His claims must be dismissed.

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The Court declines to award defendant its reasonable expenses, including attorney’s fees,

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incurred in making its renewed motion, as the Court has already awarded defendant over $900 in

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fees as a discovery sanction and plaintiff’s financial circumstances would make a sanction of

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additional fees unjust. See Fed. R. Civ. P. 37(b)(2)(C).

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ORDER GRANTING DEFENDANT’S RENEWED
MOTION TO DISMISS AS A DISCOVERY SANCTION - 4

CONCLUSION

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For the foregoing reasons, the Court GRANTS defendant’s renewed motion to dismiss as

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a discovery sanction. Dkt. # 82. Defendant’s third motion to continue, Dkt. # 85, is DENIED as

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moot. The Clerk of Court is directed to enter judgment in favor of defendant and against

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plaintiff.

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DATED this 3rd day of February, 2017.

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A

Robert S. Lasnik
United States District Judge

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ORDER GRANTING DEFENDANT’S RENEWED
MOTION TO DISMISS AS A DISCOVERY SANCTION - 5