The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a former state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is Defendants' motion for dismissal sanctions (Doc. 318) for Plaintiff's failure to produce documents at his deposition. Plaintiff also has several motions pending, including motions to compel and motions for sanctions. He has filed an opposition to Defendants' motion (Doc. 325).
Pursuant to this court's scheduling order, issued January 4, 2008, all discovery was due by June 27, 2008. The parties requested a modification of the discovery deadlines set forth in the scheduling order, but with the exception of Plaintiff's deposition, the court has denied the requests. (See Doc. 97, 185). Prior to the close of discovery, both parties brought motions to compel. Plaintiff's motion sought the production of documents, which was granted in part and denied in part. Defendants were to ordered to serve supplemental responses to several of plaintiff's requests for production, and to produce responsive documents in their custody, possession, or control, as to others (Doc. 185).
Defendants' motion sought to compel Plaintiff's appearance at a properly noticed deposition. Plaintiff's attendance at a deposition is specifically relevant to the instant motion. Plaintiff's original deposition was noticed for May 14, 2008. Plaintiff failed to appear for that deposition. As a result of Plaintiff's failure to attend the noticed deposition, the Defendants brought a motion to exclude Plaintiff's testimony or compel his attendance at a deposition (Doc. 166). Rather than taking the extreme step of precluding Plaintiff from offering his testimony as an appropriate sanction, the court ordered Plaintiff to appear for a deposition upon notice by the Defendants, and ordered Plaintiff to pay monetary sanctions in the amount of $474 for his failure to appear at the deposition (Doc. 185). Although discovery was closed at the time of that order, the court extended the discovery deadline, as to Plaintiff's deposition only, for 90 days. On September 19, 2008, Defendants noticed Plaintiff's second deposition for December 8, 2008. In the notice of deposition, Defendants requested Plaintiff produce documents supporting his claims and the documents he intends to use at trial. In response, Plaintiff filed a notice that he was not refusing to attend the deposition, but he did not have the financial means to attend a deposition in California while he was residing in Arkansas (Doc. 186). In addition, Plaintiff requested the Defendants take his deposition by remote, or telephonic, means. Defendants objected to taking Plaintiff's deposition remotely because the inability to face Plaintiff during his deposition would hinder the Defendants' ability to ascertain Plaintiff's truthfulness and judge his ability to relate to a jury, and it would hinder Defendants' ability to question Plaintiff as to specific documents which they had requested Plaintiff to produce at the deposition.
The court required Plaintiff to appear at his deposition in person as noticed. This decision was based in part on the Defendants' request for Plaintiff to produce documents at his deposition. Plaintiff requested his December 8, 2008 deposition be postponed, which the court denied. Plaintiff was ordered to appear at his deposition as noticed by the Defendants. Plaintiff then failed to appear at the deposition on December 8, 2008. As a result, Defendants brought another motion for sanctions (Doc. 240). The court declined to rule on that request, and instead gave Plaintiff one last opportunity to appear for a deposition as noticed. The court stated that if Plaintiff failed to appear at his deposition as noticed, the court would grant the Defendants' motion for terminating sanctions. Plaintiff filed several motions for reconsideration of the undersigned's orders regarding his deposition. The District Judge denied the motions, specifically discussing Plaintiff's appearance at a deposition, and the request for documents (Doc. 273).
On January 30, 2009, Plaintiff did appear at his deposition, but failed to bring any documents with him as required by the deposition notice. Based on Plaintiff's appearance, the court denied Defendants' motion for sanctions without prejudice to Defendants' ability to bring a new motion for sanctions, if appropriate, based on what occurred or did not occur at the deposition (Doc. 296). Defendants' renewed motion for dismissal sanctions is based on Plaintiff's failure to follow court orders, failure to produce documents at his deposition as required, and his failure to pay the previously ordered monetary sanctions.
Under Rule 37 a party may bring a motion for sanctions based on another party's failure to comply with a court order and for the party's failure to respond to a request for inspection of documents. See Fed. R. Civ. Proc. 37(b), (d). The court also has an inherent power to issue sanctions for abusive litigation practices. See Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006). In addition to monetary sanctions, non-monetary sanctions for a party's failure to comply with a court order include: (1) finding an issue to be established; (2) precluding evidence, a claim or a defense; (3) striking pleadings; (4) staying further proceedings; (5) dismissing the action; (6) rendering a default judgment; or (7) finding a party in contempt of court. See Rule 37(b)(2). The imposition of dismissal sanctions are limited to where there is a finding of willfulness, fault, or bad faith. See Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1337 (9th Cir. 1985).
When deciding whether to impose dismissal sanctions, the court generally considers five factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability less drastic sanctions." Anheuser-Busch, Inc. v. Natural Beverage Distrib., 69 F.3d 337, 348 (9th Cir. 1995) (citing Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993)). "Providing plaintiff with a second or third chance following a procedural default is a 'lenient sanction,' which, when met with further default, may justify imposition of the ultimate sanction of dismissal with prejudice." Malone v. U.S. Postal Serv., 833 F.2d 128, 132 n.1 (9th Cir. 1987) (citing Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1521 (5th Cir. 1985)).
As a result of Plaintiff's failure to bring any supporting documents with him to the deposition, Defendants have filed a renewed motion for dismissal sanctions. In their motion, Defendants argue that the court ordered Plaintiff to appear at his deposition as noticed. The deposition notice requested Plaintiff produce documents for inspection and copying at his deposition. Therefore, Plaintiff's failure to produce the requested documents was in violation of the court's order to appear as noticed. The deposition notice specifically requested Plaintiff produce the following:
1. Any and all letters, grievances, or inmate appeals submitted by you in connection with the subject matter of this lawsuit;
2. All documents which you have in your possession or control which relate to the issues you allege are the subject matter of this lawsuit; / / / 3. All written statements you have received from any person concerning the issues you claim are the subject matter of this lawsuit; and
4. All documents which you have in your possession or control which you intend to use at trial. ...