The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: DEFENDANTS' MOTION TO DISMISS ACTION
Plaintiff is proceeding pro se and in forma pauperis with a civil action in this Court. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302(c)(1) and 72-303.
Pending before the Court is Defendants' motion to dismiss the action with prejudice for Plaintiff's failure to cooperate in discovery and failure to comply with a protective order, which was filed on October 8, 2008, with the supporting declarations of Erica M. Camarena and Stefanie Tholen. Plaintiff filed a document purporting to be a motion to reschedule Plaintiff's deposition on October 10, 2008, and the Court deemed it to be opposition to Defendant's motion to dismiss. A reply was filed by Defendant on October 31, 2008. The hearing on the motion, previously set for November 7, 2008, has been vacated, and the matter has been submitted.
This action proceeds on the third amended complaint, filed on March 3, 2008, after serial motions to dismiss were resolved in Defendant's favor. Pursuant to 42 U.S.C. § 1983, Plaintiff seeks damages from Defendant Fresno City Police Officer Aranas for an allegedly unlawful arrest and related violations of the Fourth Amendment. The action was originally filed on November 6, 2006.
Review of the docket shows that Plaintiff failed to serve Defendants with his initial disclosures pursuant to Fed. R. Civ. P. 26 after having assured the Court at the scheduling conference held in January 2008 that he would produce them; it required a motion on the part of Defendant (Doc. 44), pursuant to which the Court ordered the disclosure to take place by May 23, 2008. (Minutes of hearing held May 16, 2008.)
B. Plaintiff's Repeated Failure to Appear for Deposition
Plaintiff failed to submit to his deposition that was noticed for March 17, 2008; Plaintiff failed to appear without communicating with Defendant's counsel and after having received not only notice of the deposition, but a telephone call from Defendant's counsel reminding him of his deposition and seeking confirmation of his intention to appear. (Decl. of Erica M. Camarena, Doc. 44-4, pp. 2-3; Decl. of Juliette Sierra, Doc. 44-3, p. 1.) When in mid-April Defendant's counsel attempted to converse with Plaintiff about setting a new deposition of Plaintiff, Plaintiff failed to cooperate. (Decl. of E. Camarena, Doc. 46-2, p. 2.)
When Defendant's counsel followed up with a letter confirming the conversation and subsequently re-noticed Plaintiff's deposition to be taken on May 12, 2008, Plaintiff disregarded requests that he confirm his intention to appear and did not respond; he failed to appear at the deposition. Defendant's counsel also called Plaintiff in an attempt to determine his whereabouts about a half hour after the deposition was set to commence; Plaintiff never returned the telephone call. (Id. at pp. 2-3.)
On May 16, 2008, at the hearing on the Defendant's motion to compel discovery and for sanctions, the Court granted Defendant's motion for payment of fees and costs incurred, including the costs and fees associated with Plaintiff's failure to appear at his deposition. The Court found that Plaintiff had twice failed to appear for his deposition, and the Court expressly warned Plaintiff that he needed to expend effort to work with the Defendant or the Court would have no option but to recommend to the District Judge that the case be dismissed for failure to follow Court orders, the Federal Rules of Civil Procedure, and the Local Rules. The Court clearly explained to Plaintiff the need to move forward with discovery, and the Court expressly told Plaintiff that Plaintiff's claimed exhaustion and overwork could not preclude the progress of the case. The Court ordered that the deposition of Plaintiff could be set to occur at the courthouse, and it extended the discovery deadline to June 20, 2008. (Doc. 47, minutes of May 16, 2008.)
At the hearing in May, Plaintiff mentioned that he had a fourth amended complaint to add a defendant. Plaintiff also filed on June 23, 2008, a motion for leave to amend to add the City of Fresno and Fresno Police Department as defendants; it was ordered stricken because the motion was not accompanied by a proof of service.
On September 8, 2008, a notice of the deposition of Plaintiff, to be taken at the courthouse, was filed by Defendant. On October 6, 2008, the date the deposition was to occur, and after the court reporter was set up and ready to begin, Defendant's counsel was informed that Plaintiff had called Defendant's office receptionist and had stated that he was not going to make it to the deposition because he had had a long night, or something to that effect. Plaintiff did not contact the Court to inform it that he would not appear; Plaintiff did not appear. (Decls. of Stephanie Tholen, pp. 1-2, and Erica M. Camarena, pp. 1-2.) Plaintiff had left a voice mail in which he stated that he had eaten something bad the previous night and did not think he would be able to make it that morning; he asked to receive an e-mail ...