The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present action, Plaintiffs, who were white employees of Defendant Save Mart's*fn1 Store 7254 in Vallejo, California, allege they were subjected to so-called "reverse" discrimination at the hands of an African-American store manager who is claimed to have discriminated, harassed and retaliated against Plaintiffs because they were not African-American.
Presently before the Court is Defendant's Motion for Monetary and Terminating Sanctions as to Plaintiff Miracle Johnson. Defendant asserts that Plaintiff Johnson has willfully failed to comply with repeated discovery requests. As an alternative to the requested sanctions, Defendant seeks an Order Compelling Discovery.
The sanctions requested by Defendant are sought pursuant to Federal Rule of Civil Procedure 37(b), which permits the Court to impose both evidentiary and terminating sanctions for failure to comply with discovery orders. Where, as here, Defendant alleges that a party failed to appear for a noticed deposition and further failed to respond in any fashion to written discovery requests, Rule 37 sanctions are available even in the absence of a prior court order. Fed. R. Civ. P. 37(d); Hilao v. Estate of Marcos, 103 F.3d 762, 764-465 (9th Cir. 1996). The Court is vested with inherent power to impose sanctions under Rule 37 as long as it does so with restraint and discretion. See Roadway Express v. Piper, 447 U.S. 752, 764 (1980).
Defendant asks the Court to dismiss Miracle Johnson's lawsuit given her alleged failure to comply with discovery requests. "Where the drastic sanctions of dismissal or default are imposed...., [however], the losing party's non-compliance must be due to willfulness, fault or bad faith." Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 2003), quoting Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994). Terminating sanctions are generally imposed only where a party's conduct demonstrates repeated failures to comply with discovery requests.
See, e.g., Computer Task Group Inc. v. Brotby, 364 F.3d 1112, 1115 (dismissal warranted where court issued five separate orders compelling discovery along with repeated oral warnings).
Here, Defendant asserts that the requisite pattern of ignoring discovery obligations is present because Plaintiff Johnson failed to show up for deposition twice, and still has neglected to provide the requisite responses to written discovery requests. The evidence does not show, however, that Miracle Johnson and her counsel, Jill Barwick, have consistently refused to participate in the discovery process. To the contrary, it appears that Ms. Barwick and defense counsel have cooperated in much of the other discovery propounded in this multi-plaintiff litigation. With respect to Plaintiff Johnson, Ms. Barwick claims that she did not receive notice of the first deposition, and that she had agreed to provide the outstanding discovery responses the day before the deposition was supposed to proceed. The second deposition did not go forward as planned due to a dispute between the parties over a discovery stay in conjunction with Plaintiffs' then-pending Motion to Remand. These circumstances do not permit the Court to conclude, as it must to justify terminating sanctions, that Plaintiff Johnson and Ms. Barwick willfully abused the discovery process.
The Court consequently declines to grant the requested terminating sanctions, and will further refrain from any award of attorney's fees at this time. The instant Motion (ECF No. 84) is accordingly DENIED to that extent.*fn2 The Motion will be GRANTED in part, however, given the fact that the Court will issue an order compelling discovery as requested by Defendant. Plaintiff Miracle Johnson is hereby ordered to make herself available for deposition within thirty (30) days following the date of this Order. Plaintiff Johnson is further ordered to provide responses to all outstanding requests for written discovery not later than one week before her deposition is scheduled. The Court will reassess the issue of sanctions should Johnson fail to appear for deposition and/or provide the requisite discovery responses.