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TUCKER v. CAREER SYSTEM DEVELOPMENT CORPORATION

United States District Court, S.D. California


September 27, 2005.

VINCENT TUCKER, Plaintiff,
v.
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 COMPLAINT
I.
INTRODUCTION
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 issue.

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.

  FACTUAL BACKGROUND

  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.

  III.

  PROCEDURAL HISTORY

  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 stricken.
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, 2005.
Any failure of Plaintiff to cooperate in the discovery process could result in the dismissal of this case.
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 part:
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.
IV.
ARGUMENTS
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 claim.*fn3

  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 forward." (Id.)

  V.

  LEGAL STANDARD

  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.

  VI.

  DISCUSSION

  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 discovery responses.

  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.

  VII.

  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.

20050927

© 1992-2005 VersusLaw Inc.



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