United States District Court, S.D. California
September 27, 2005.
VINCENT TUCKER, Plaintiff,
CAREER SYSTEM DEVELOPMENT CORPORATION, et al., Defendant.
The opinion of the court was delivered by: WILLIAM McCURINE, JR., Magistrate Judge
REPORT AND RECOMMENDATION FROM MAGISTRATE JUDGE TO STRIKE THE
On September 16, 2005, the Court convened a telephonic Status
Conference in the above-captioned matter. Defendants Career
Systems Development Corporation and San Diego Job Corps.
(collectively "Defendant") requested the Court to find Plaintiff
Vincent Tucker ("Plaintiff") in civil contempt for obstructing
the discovery process as the Court has held its ruling on the
issue in abeyance. The Court ordered letter briefing of the
The Court has carefully considered and reviewed Defendants'
Brief, Plaintiff's Brief, and all accompanying documentation, and
based upon such documents, and for the reasons set forth below,
the Court REPORTS that Plaintiff is in civil contempt of Court
and RECOMMENDS that the Complaint be stricken. II.
Plaintiff, an African-American male and veteran of the United
States Armed Forces, brings this lawsuit to seek relief for
alleged discrimination and retaliation originating from his
employment with Defendants. Plaintiff alleges that Defendants
retaliated against him due to his involvement in a separate
lawsuit brought against Defendants and falsified documentation to
support the termination of his employment.
On February 12, 2004, Plaintiff filed the Complaint. On August
31, 2004, Plaintiff filed the First Amended Complaint. On
December 6, 2004, Defendants filed an Answer. On March 8, 2005,
the Court entered a Scheduling Order setting May 31, 2005 as the
cut-off for all discovery. On April 27, 2005, the Court entered
an Amended Scheduling Order setting July 29, 2005 as the new
cut-off for all discovery.
Due to the inability of Defendants to obtain necessary
discovery responses from Plaintiff, a telephonic Status
Conference was held on July 28, 2005.*fn1 The Court's Order
dated July 28, 2005 states in part:
The deposition of Plaintiff will take place on August
12, 2005 at 10:00 a.m. Defendant will make
arrangements for a taxi to pick up Plaintiff on
August 12, 2005 at 9:00 a.m. at the address
designated during the telephonic status conference of
July 28, 2005. Defendant will also make arrangements
for a taxi to take Plaintiff back to the same address
after the deposition is taken.
Plaintiff will provide Defendant with responses to
all interrogatories so that they are received on or
before August 8, 2005. Plaintiff will provide
Defendant with responses and documentation in
response to the request for production of documents
so that they are received by August 10, 2005.
If Plaintiff does not comply with this order to allow
discovery to move forward, the complaint may be
Defendants fully complied with the Order dated July 28, 2005.
Plaintiff appeared for the deposition on August 12, 2005 but was
unable to complete it. Plaintiff failed to provide responses to
interrogatories or responses/documentation in response to the
request for production of documents as ordered by the Court. Another telephonic Status Conference was held on August 16,
2005. Plaintiff stated that he was too exhausted from working the
night before to complete the deposition of August 12, 2005.
Plaintiff stated that it was "his own ignorance from not being a
lawyer" that prevented him from providing the ordered written
discovery responses. The Court's Order dated August 16, 2005
states in part:
Due to the failure of Plaintiff to complete the
deposition of August 12, 2005, an additional
deposition will take place on August 30, 2005 at
10:00 a.m. Plaintiff will provide his own
transportation to the office of Defendant's counsel
so that the deposition can begin at 10:00 a.m.
Plaintiff will provide responses to all
interrogatories so that they are received by
Defendant on or before August 23, 2005. Plaintiff
will provide all additional documentation as
discussed during the telephonic conference so that it
is received by Defendant on or before August 26,
Any failure of Plaintiff to cooperate in the
discovery process could result in the dismissal of
Plaintiff failed to provide responses to the interrogatories or
request for production of documents. On August, 29, 2005, the
Court issued an Order Scheduling Hearing to Show Cause for
Failing to Comply with its Order dated August 16, 2005. On
September 6, 2005, a telephonic Hearing on the Order to Show
Cause was held. Plaintiff again raised the excuse of not having
an attorney for his failure to comply with the Court's Orders
regarding discovery. The Order dated September 6, 2005 states in
The Court will hold in abeyance its ruling. Plaintiff
will provide Defendant with the discovery responses
discussed on or before September 14, 2005.
Plaintiff again failed to provide the ordered discovery
responses. On September 15, 2005, a telephonic Status Conference
was held. Plaintiff stated that he did not provide the responses
because Defendants made it impossible for him to obtain the
necessary information to do so. Defendants pointed out that this
is the first time this excuse has been raised throughout the
process of trying to extract responses from Plaintiff. The Order
dated September 15, 2005 states in part:
The Court continues to hold in abeyance its ruling
from the Hearing on the Order to Show Cause.
Plaintiff will hand-deliver to Defendant the
discovery responses discussed in the Conference of
September 15, 2005 by 3:00 p.m. on September 16,
2005. Failure of Plaintiff to comply with this Order
may result in the dismissal of this case.
A telephonic Status Conference will be held on
September 16, 2005 at 4:00 p.m. Plaintiff hand-delivered his responses to
interrogatories a few minutes before 4:00 p.m. on
September 16, 2005. Both parties participated in the
telephonic Status Conference from the office of
defense counsel's. Defendants stated that most of the
responses were simply objections to the
interrogatories. The Court explained that it did not
continually extend time to respond for Plaintiff to
hand over pages of objections. The Order dated
September 16, 2005 ordered briefing regarding the
ruling currently held in abeyance.
A. Defendants' Arguments
Defendants detail the steps the Court has taken to remedy
Defendants' inability to conduct necessary discovery. (See
Defs.' Brief at 1-2.) "To date, five telephonic status
conferences and four Court orders later, Defendants still have
not received (1) a written response to their Request for
Production of Documents; (2) responsive documents; or (3) a
complete written response to their Special Interrogatories."
(Id. at 2.)
Regarding the papers that Plaintiff did provide, Defendants
explain that despite his waiver of objections.*fn2 Plaintiff
objected to ten out of the thirteen interrogatories Defendants
propounded. (Id. at 2-3.) Defendants further explain that
Plaintiff made improper relevance objections to the
interrogatories concerning Plaintiff's alleged lost income
Defendants state that, if it is too inconvenient for Plaintiff
to comply with the Court's Orders and participate in the
discovery process, the Court should not allow him to continue
this litigation. (Id. at 3.) "[Plaintiff's] excuses for not
providing the Court-ordered responses range from he is trying to
get an attorney to he ran out of ink on his printer to he had to
work the night before to, the most recent excuse, that it is now
Defendants' fault." (Id.) Defendants believe that Plaintiff has demonstrated that he does not take the Court's
Orders or this case seriously. (Id. at 4.) Defendants argue
that they should not be required to spend time and money only to
be prejudiced in a case they did not initiate. (Id. at 3.)
B. Plaintiff's Arguments
Plaintiff argues that if his case is dismissed or other
sanctions are imposed, "justice would not be served." (Pl.'s
Brief at 1.) Plaintiff claims that Defendants urge the Court to
dismiss the case for Plaintiff's lack of experience. (Id.) He
explains that Defendants are forced to spend their time and money
in this case because of their "own misconduct in handling
[Plaintiff's] discharge." (Id.) Plaintiff states that if
Defendants have problems with the responses he has provided, they
can identify them and bring a motion to compel. (Id.)
Plaintiff also emphasizes that he has the utmost respect for
the Court. (Id.) "[B]ecause Mr[.] Tucker takes this litigation
so serious he will be resigning from his job so he can dictate
[sic] his full attention in prosecuting his case from this point
According to Federal Rule of Civil Procedure 37(b)(2), if a
party fails to obey an order to provide or permit discovery, the
Court may order sanctions, including striking out of pleadings or
parts thereof. See Fed.R.Civ.P. 37. "Rule 37(d) allows for any
of the sanctions available in Rule 37(b)(2) if a party fails to
attend her own deposition, or if she fails to respond to the
opposing party's interrogatories or requests for inspection."
Unigard Security Ins. Co. v. Lakewood Eng. & Mtg. Corp.
982 F.2d 363, 368. This circuit has recognized making discovery and
evidentiary rulings conducive to the conduct of a fair and
orderly trial as an inherent power of the Court. See Id.
Plaintiff's failure to comply with any one of the Court's
Orders regarding discovery in this matter fits within the scope
of Federal Rule of Civil Procedure 37. First, Plaintiff failed to
show up for his first noticed deposition and failed to inform
defense counsel that he would not attend. Second, the Order dated July 28, 2005 ordered Plaintiff to be
ready to be picked up for a deposition on August 12, 2005 at 9:00
a.m. Plaintiff was further ordered to provide responses to
interrogatories by August 8, 2005 and responses and documentation
responding to the request for production of documents by August
10, 2005. In the same Order, the Court ordered Defendants to
arrange and pay for the transportation of Plaintiff to the
deposition. While Defendants complied with all orders directed
toward them, Plaintiff failed to comply with every order directed
toward him. As discussed above, although Plaintiff did in fact
attend the deposition, he attended with insufficient sleep to
complete the deposition. Implied in the Court's order to provide
himself to be deposed was the order to provide himself in a
condition to complete a deposition in its entirety.
Third, the Order dated August 16, 2005 ordered Plaintiff's
deposition to take place on August 30, 2005, responses to
interrogatories to be provided by August 23, 2005, and all
responses and documentation to the request for production of
documents by August 26, 2005. Plaintiff failed to provide the
Fourth, the Order dated September 6, 2005 ordered Plaintiff to
provide the discovery responses by September 14, 2005. Again,
Plaintiff failed to provide the responses.
Fifth, the Order dated September 15, 2005 ordered Plaintiff to
provide the discovery responses by September 16, 2005. Plaintiff
failed to provide Defendants with meaningful discovery responses
as ten out of thirteen responses were straight objections.
This Court finds each of these failures to comply with the
Court's Orders a serious obstruction of the discovery process.
The Court has provided Plaintiff with numerous opportunities to
cooperate with the discovery process well outside the
Court-ordered discovery cut-off date. In each of the Court's
Orders relating to this issue, the Court explicitly warned
Plaintiff that failure to comply may result in the dismissal of
the lawsuit. The repeated failure to obey its Orders drives this
Court to end this case. This Court will not allow the continued
expenditure of the Court's and Defendants' resources in a lawsuit
Plaintiff refused to cooperate within.
CONCLUSION AND ORDER THEREON
For the reasons discussed above, this Court finds that
Plaintiff has significantly obstructed the discovery process. Therefore, IT IS HEREBY RECOMMENDED that
the Court issue an Order: (1) approving and adopting this Report
and Recommendation, and (2) striking the Complaint.
IT IS ORDERED that no later than October 13, 2005, any
party to this action may file written objections with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall
be filed with the Court and served on all parties no later than
October 27, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's Order. See Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v.
Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
IT IS SO ORDERED.
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