ORDER AND FINDINGS AND RECOMMENDATIONS
On February 24, 2010, the undersigned heard plaintiff's motion for terminating sanctions against defendants Chawn Anderson and Heather Apodaca, formerly d/b/a AA & M Electric ("individual defendants") pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(iii) and (vi). Dckt. No. 71. Attorney Robert D. Swanson appeared on behalf of plaintiff; no appearance was made on behalf of the individual defendants. For the reasons that follow, the court recommends that plaintiff's motion be granted, and that the individual defendants' answer be stricken and default judgment be entered against all defendants.*fn1
This is an action pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. Plaintiff claims that defendants engaged in a fraudulent scheme of submitting false invoices to plaintiff, in excess of $1 million, in violation of 18 U.S.C. § 1962(c) ("It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt."). The following additional claims are also made: breach of contract, common law fraud, and violation of California Business and Professions Code sections 17200 et seq. (fraudulent business practices).
The complaint recounts that, commencing in late 2004, plaintiff initiated a voluntary recall of its Arc Fault Interrupter Circuit Breakers manufactured by plaintiff between March 1, 2004 and September 23, 2004. In 2005, plaintiff reached an agreement with defendants to replace circuit breakers subject to the recall. Defendants submitted invoices for more than 18,000 addresses purportedly serviced between November 2005 and June 2007; plaintiff contends these invoices included invalid addresses, and valid addresses that were not serviced.
Plaintiff is incorporated in Delaware, with its principal place of business in Palatine, Illinois; the individual defendants are married, citizens of California and domiciled in San Joaquin County. The individual defendants were the sole proprietors of defendant AA & M Electric d/b/a until it became incorporated on January 12, 2007, in California, with its principal place of business in Tracy, California. The corporation has since been suspended.
The instant action was filed on June 10, 2008. On June 16, 2008, process was served upon the corporation by personal service upon its authorized agent (Erica Calderon, Los Angeles), as well as upon the individual defendants. All returns of service were filed November 12, 2008. See Dckt. Nos. 12, 13, 14.
On July 23, 2008, individual defendants Anderson and Apodaca answered the complaint on behalf of themselves, in pro se, and purportedly on behalf of AA & M Electric, Inc. Pursuant to a regularly scheduled status conference held on November 12, 2008, and pursuant to the court's scheduling order filed November 13, 2008, the individual defendants were instructed to obtain counsel for AA & M Electric, Inc. Dckt. No. 16. On January 14, 2009, after the individual defendants failed to obtain counsel for their corporation, despite adequate time to do so, this court struck defendants' answer as to AA & M Electric, Inc., and directed the Clerk of Court to enter the corporation's default. Dckt. Nos. 21, 22. Plaintiff timely moved for default judgment, but repeatedly rescheduled the hearing in an effort to obtain discovery from the defendants. Dckt. Nos. 23, 25, 35; see also Dckt. No. 37. The individual defendants were served with all pertinent moving papers and exhibits. The hearing on the motion for default judgment was ultimately held on September 2, 2009, and on November 16, 2009, the undersigned issued findings and recommendations, recommending that default judgment be entered against defendant AA & M Electric, Inc. Dckt. Nos. 46, 69.
In the meantime, on October 1, 2009, the undersigned issued an order granting plaintiff's motion to compel discovery based on the individual defendants' complete and total failure to provide initial disclosures or to respond to any discovery request, and ordered the individual defendants to provide plaintiff with that discovery on or before October 16, 2009. Dckt. No. 57 at 2. The undersigned also granted plaintiff's request for discovery sanctions; ordered the individual defendants to make payment to plaintiff's counsel, on or before October 16, 2009, in the amount of $2,032.50; and ordered the individual defendants to file an affidavit, on or before October 20, 2009, stating that they had fully complied with the order. Id. at 3. The order admonished the individual defendants "that failure to comply with orders of this court, the Local Rules, or the Federal Rules of Civil Procedure, 'may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court.'" Id.
On November 24, 2009, the undersigned issued an order granting plaintiff's motion to compel the individual defendants to appear for deposition and request for sanctions; directed the individual defendants "to appear for deposition at plaintiff's counsel's Sacramento offices within fourteen days . . . and to coordinate precise dates and times for those depositions with plaintiff's counsel"; and directed the individual defendants to pay $1716.63 to plaintiff's counsel within thirty days and to file with the Clerk an affidavit within fourteen days thereafter which states that they have paid the sum. Dckt. No. 70 at 4. Plaintiff's December 15 motion to compel contends that the individual defendants have not complied with the October 1, 2009 order or the November 24, 2009 order. Dckt. No. 71.
Because the individual defendants failed to timely respond to plaintiff's December 15 motion, on December 31, 2009, the undersigned ordered the individual defendants to file an opposition or statement of non-opposition to plaintiff's motion and to show cause, on or before January 20, 2010, why plaintiff's motion should not be granted, and why their answer should not be stricken and default judgment entered against them. Dckt. No. 72. The order again reminded the individual defendants that pro se litigants are bound by the rules of procedure and that failure to comply with the Federal Rules of Civil Procedure and Local Rules may be ground for dismissal, judgment by default, or other appropriate sanction. The order also specifically stated that "[i]f defendants fail to respond to this order to show cause or fail to respond to plaintiff's motion, the undersigned will recommend that plaintiff's motion be granted; that defendants' answer be stricken; and that default judgment be entered against defendants."
On January 29, 2010, because court records reflected that the individual defendants had once again failed to respond to this court's orders, the undersigned issued an order indicating that he "intends to recommend that plaintiff's motion for sanctions be granted, defendants' answer be stricken, and default judgment be entered against defendants," but stating that in order to do so, plaintiff needed to provide information and supporting documentation regarding the appropriate judgment amount. Dckt. No. 73. The January 29, 2010 order directed plaintiff to file a proposed order and default judgment, as well as all necessary supporting documentation, by February 10, 2010. Id. at 4-5. The court once again provided the individual defendants with an opportunity to respond. Id. at 5.
On February 10, 2010, plaintiff filed a memorandum of points and authorities in support of its motion for sanctions, a declaration in support thereof, and a proposed order and default judgment, all of which were served on the individual defendants. Dckt. Nos. 74-77. The individual defendants have filed nothing in response.