The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, who is proceeding with retained counsel, brings this civil action. Pending before the court is defendants' unopposed motion for dismissal sanctions and/or monetary sanctions (Doc. 17). A hearing was held on November 18, 2010, at 10:00 a.m. before the undersigned in Redding, California. Jim Dippery, Jr., Esq., appeared for plaintiff. Kim Kakavas, Esq., appeared for defendants.
This is the second time this matter is before the undersigned on a discovery dispute. The case was before the court on October 28, 2010, on defendants' unopposed motion to compel plaintiff's attendance at her deposition and IME. At the hearing, the parties agreed that plaintiff would attend her deposition and IME on November 3, 2010, and the court so ordered. In the instant motion, defendants state that, despite the parties' agreement and the court's order, plaintiff failed to appear at either the deposition or IME. A supplemental declaration filed by defendants' counsel in support of the current motion indicates that the parties had again agreed on a date for plaintiff's deposition and IME, this time November 17th. Counsel states that, once again, plaintiff did not appear for either scheduled event.
Under Federal Rule of Civil Procedure 37(d)(3), the court may, on motion, impose sanctions for failure of a party to attend a duly noticed deposition. Such sanctions may include dismissal of the action. See Fed. R. Civ. P. 37(b)(2)(A)(v). Under Rule 37(d)(3), the court must also require the non-compliant party, their counsel, or both to pay the prevailing party reasonable attorney's fees. In this case, plaintiff's counsel stated at the hearing that he had no objection to dismissal of the action as an appropriate sanction, but requested that such dismissal be without prejudice. Defendants request the dismissal be with prejudice. As to monetary sanctions, plaintiff's counsel agreed that the amount requested by defendants -- $7,383.95 fees and expenses related to both the deposition and IME -- is reasonable. Plaintiff's counsel further stated that payment of monetary sanctions should be a condition to plaintiff's ability to re-file this action.
Based on the foregoing evidence and the representations by counsel at the hearing, the court finds that dismissal of the action is appropriate as a sanction for plaintiff's failure to participate in the discovery process and failure to comply with the court's previous order. The dismissal will be without prejudice. Defendants should be awarded monetary sanctions in the amount of $7,383.95, and the timely payment of such sanctions should be a condition to plaintiff's ability to re-file this action.
Based on the foregoing, the undersigned recommends that:
1. Defendants' unopposed motion for dismissal and/or monetary sanctions (Doc. 17) be granted;
2. Plaintiff be ordered to pay to defendants within 30 days of the date of the final order adopting these findings and recommendations the sum of $7,383.95 as reasonable monetary sanctions;
3. Timely payment of such sanctions be deemed a condition to plaintiff's ability to re-file this action; and
4. The Clerk of the Court be directed to enter judgment of dismissal and close this file.
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)(l). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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