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Harrell v. Palmer


August 12, 2010



Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's renewed request for terminating and monetary sanctions.


On April 29, 2009, defendant Palmer noticed plaintiff's deposition for June 22, 2009. When plaintiff refused to submit to the deposition, on July 10, 2009 defense counsel filed a motion to compel plaintiff's participation in the deposition. (Doc. No. 44.) By order filed August 20, 2009, the court granted defendant's motion to compel, and plaintiff's deposition was re-noticed for September 18, 2009. (Doc. No. 49.) However, when defense counsel attempted to take plaintiff's deposition at that time, plaintiff refused to participate once again. According to the brief deposition transcript, plaintiff objected to the deposition on the ground that the court's August 20, 2009 order requiring him to participate in the deposition was not final because he had filed a motion for reconsideration of the order. (See Doc. No. 50.)

On September 29, 2009, the assigned district judge denied plaintiff's motion for reconsideration. (Doc. No. 51.) On October 15, 2009, defense counsel filed a motion for terminating sanctions based upon plaintiff's failure to submit to a deposition. (Doc. No. 52.) By order filed February 26, 2010, the court denied defendant's motion without prejudice, but again ordered plaintiff to cooperate in the taking of his deposition by defense counsel. (Doc. No. 62.) Moreover, the court strongly cautioned plaintiff that any further refusal to cooperate with defense counsel in the taking of his deposition would be viewed as dilatory and would result in a recommendation that this action be dismissed. (Id.)

On March 3, 2010, the assigned district judge issued an order denying plaintiff's motion for certification of an interlocutory appeal filed October 16, 2009. (Doc. Nos. 54 & 64.) In this regard, the assigned district judge found no controlling question of law at issue and no substantial grounds for a difference of opinion as to whether plaintiff should be required to submit to a deposition.

Defendant's counsel once again noticed plaintiff's deposition, this time for April 20, 2010. Despite the court's orders requiring plaintiff to cooperate with defense counsel in the taking of his deposition, on March 11, 2010 plaintiff filed a notice with the court indicating his intent to once again refuse to participate in the scheduled deposition. (Doc. No. 66.) Accordingly, on March 16, 2010, defense counsel filed the pending renewed motion for terminating and monetary sanctions. Defense counsel also re-noticed plaintiff's deposition for a fourth time, this time for May 18, 2010. On May 6, 2010, plaintiff filed yet another notice with the court, declaring his refusal to participate in the scheduled deposition. (Doc. No. 70.)


I. Defendant's Motion

In defendant's renewed motion for terminating and monetary sanctions, defense counsel argues that plaintiff continues to refuse to be deposed, despite multiple court orders requiring him to do so. Moreover, defense counsel maintains that counsel has incurred unnecessary costs in attempting to obtain plaintiff's deposition. Accordingly, defense counsel argues that plaintiff's bad faith in repeatedly refusing to submit to deposition warrants terminating sanctions and either full or partial reimbursement of the $3,416.83 in costs incurred as a result of his conduct. (Def.'s Mem. of P. & A. at 1-5, Exs. A & B.)

II. Plaintiff's Opposition

In his opposition to the pending motion, plaintiff argues that defendant's request to depose him is "merely a wasteful procedure engaged in by [defendant] to delay trial." (Pl.'s Opp'n at 2.) Plaintiff contends that the information defendant seeks can be obtained through "more convenient and less expensive method[s]" and that his deposition should therefore not be taken and the motion for sanctions should be denied. (Id.)

III. Defendant's Reply

In reply, defense counsel dismisses plaintiff's argument that other discovery methods should be employed to obtain information from plaintiff. Defense counsel also reiterates that plaintiff's repeated failure to participate in his deposition should result in the dismissal of this action. (Def.'s Reply at 1-2.)

On May 26, 2010, defense counsel filed a supplemental declaration in support of defendant's renewed motion for terminating and monetary sanctions. Therein, defense counsel details her most recent attempt to depose plaintiff. According to defense counsel, on May 18, 2010, counsel received a call from the Litigation Coordinator at California State Prison Solano, who stated that plaintiff had changed his mind and had agreed to attend his deposition. Accordingly, counsel arranged to depose plaintiff by video-conferencing later that morning.

However, when plaintiff appeared at that time, he expressed his displeasure that the deposition was not to be conducted in-person and refused to participate. (Def.'s Suppl. Decl. in Support of Renewed Mot. for Term. Sanc. at 1-2.)

In an effort to further accommodate plaintiff, defense counsel then sought to schedule plaintiff's deposition at the prison later that day and traveled to the institution for that purpose. Prison officials confirmed that plaintiff would participate in the face-to-face deposition. Nevertheless, when counsel arrived at the prison and was waiting for plaintiff to appear, prison officials explained to counsel that plaintiff had refused to leave his cell to attend the deposition. (Def.'s Suppl. Decl. in Support of Renewed Mot. for Term. Sanc. at 2-3, Ex. A.)

IV. Plaintiff's Response

On June 14, 2010, plaintiff requested the court to strike defendant's supplemental declaration. Plaintiff argues in this regard that defendant's declaration violates Rule 15 of the Federal Rules of Civil Procedure. In addition, plaintiff appears to challenge defendant's request for monetary sanctions. Plaintiff contends that he timely notified defense counsel that he would not participate in his deposition on May 18, 2010. According to plaintiff, any costs incurred by defense counsel in association with that deposition was unnecessary and not due to his actions. (Pl.'s Opp'n to Def.'s Mot. to Modify the Scheduling Order at 1-3.*fn1

VI. Defendant's Response

On June 21, 2010, defense counsel responded to plaintiff's request to strike her supplemental declaration, arguing that plaintiff misunderstands counsel's request for monetary sanctions. Counsel asserts that she is not seeking reimbursement for the unsuccessful May 18, 2010 deposition, but rather for her previous unsuccessful attempts to depose plaintiff. In addition, counsel contends that even defendants were seeking to recover the costs associated with the unsuccessful attempt to depose plaintiff on May 18, 2010, such a request would be justified. According to counsel, plaintiff reneged on his promise that he would attend his deposition twice that day. (Def.'s Reply to Pl.'s Opp'n to Def.'s Mot. to Modify the Scheduling Order at 2-3.*fn2


Federal Rule of Civil Procedure 37 permits the court, in its discretion, to dismiss the action of a party who fails to comply with an order compelling discovery. Fed. R. Civ. P. 37(b). In determining whether to impose terminating sanctions, the court must weigh the following 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 of less drastic sanctions. The sub-parts of the fifth factor are whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions.

Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (footnotes omitted). In addition, terminating sanctions should only be imposed when the party's noncompliance with a discovery order is "due to willfulness, fault, or bad faith." Computer Task Group v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (quoting Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997)).


Here, having considered the five factors listed above, the court recommends that terminating sanctions be imposed against plaintiff. Plaintiff's repeated and unjustified refusal to participate in a deposition has resulted in substantial and unnecessary delay in this case. Defendant first noticed plaintiff's deposition for June 22, 2009. Over one year later, plaintiff has yet to be deposed, and discovery remains at a standstill. Such needless delay inherently undermines the public's interest in an expeditious resolution of this suit. Consideration of this factor therefore weighs in favor of dismissing this action due to plaintiff's failure to abide by the court's various orders that he cooperate in the taking of his deposition.

Second, consideration of the court's time and resources also weighs in favor of dismissal. On August 20, 2009, the court unambiguously ordered plaintiff to participate in his scheduled deposition. (Doc. No. 49.) Despite the court's explicit order, plaintiff has continued to refuse to attend any and all attempts to take his deposition. This has resulted in an abundance of litigation, including two motions for terminating sanctions, (Docs. No. 52 & 67,) one request for an interlocutory appeal, (Doc. No. 54,) one motion to modify the scheduling order, (Doc. No. 72,) and numerous motions for extensions of time.

Third, as the court explained in its order filed February 26, 2010, defendant has a right under Federal Rules of Civil Procedure 30(a) to examine plaintiff by deposition in order to seek information relevant to his defense. (Doc. No. 62.) In this regard, plaintiff's persistence in refusing to submit to a deposition thwarts defendant's ability to present an adequate defense. In addition, defendant has incurred significant costs as a result of his attempts at deposing plaintiff. Thus, the risk of prejudice to defendant also favors the dismissal of this action due to plaintiff's repeated refusal to obey the court's discovery orders.

Fourth, the public policy favoring the disposition of cases on the merits generally weighs against the imposition of terminating sanctions. Here, however, the court finds that this interest would not be advanced if the court allowed plaintiff to proceed with this action despite his repeated refusals to cooperate in the discovery process. Plaintiff's categorical refusal to attend his deposition impedes the development of a full record in this case. It is therefore plaintiff's own actions that jeopardize a resolution of this action on the merits.

Fifth, the court has plainly and repeatedly warned plaintiff that failure to cooperate in the taking of his scheduled depositions would lead to a recommendation that this action be dismissed. (Docs. No. 49 & 62.) Despite the court's direct and stern warnings, plaintiff has remained obstinate. Short of dismissal, the efficacy of further actions by the court appear to be minimal. These considerations heavily favor dismissal.

Accordingly, upon consideration of all the relevant factors, the court concludes that this case must be dismissed due to plaintiff's refusal to obey the court's orders. The court will, however, not impose monetary sanctions upon plaintiff due to his in forma pauperis status. See, e.g., Redmond v. San Francisco Police Dep't, No. C 07-04276 CW (PR), 2010 WL 2573978 at *4 (N.D. Cal. June 25, 2010) (finding monetary sanctions inappropriate due to plaintiff's in forma pauperis status); Congdon v. Lenke, No. CIV 08-1065 RJB, 2010 WL 489677 at *1 (E.D. Cal. Feb. 5, 2010) (same).


For the reasons set forth above, IT IS HEREBY RECOMMENDED that:

1. Defendant's March 16, 2010 renewed request for terminating and monetary sanctions (Doc. No. 67) be granted in part and denied in part as follows:

A. Defendant's request for terminating sanctions be granted; and

B. Defendant's request for monetary sanctions be denied.

2. This action be dismissed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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