The opinion of the court was delivered by: The Honorable David O. Carter, Judge
Julie Barrera Not Present Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT
PROCEEDING (IN CHAMBERS): ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL DEFENDANT's RESPONSES TO SPECIAL INTERROGATORIES (SET ONE) SEEKING LITIGATION SANCTIONS
Before the Court is Plaintiffs' Motion to Compel Defendant's Responses to Special Interrogatories (Set One) Seeking Litigation Sanctions (Dockets 50 and 51).*fn1 The Court has considered the papers and the circumstances of this case and GRANTS IN PART and DENIES IN PART the
On February 5, 2010, Plaintiffs filed their complaint ("Complaint") alleging claims of common law trademark infringement; cybersquatting under 15 U.S.C. § 112(d); cybersquatting under 15 U.S.C. § 1129; unfair business practice; conversion; and civil conspiracy against Defendants Orange Juice Blog and Art Pedroza ("Pedroza"). (Docket 1) On March 19, 2010, Pedroza filed an answer. (Docket 10.) On November 19, 2010, the Court issued an Order granting in part and denying in part Plaintiffs' Motion for Default Judgment against Orange Juice Blog.
Plaintiffs served discovery requests on Defendant Pedroza, including a First Set of Special Interrogatories, First Set of Request for Production of Documents, and First Set of Admission, on April 21, 2010. Declaration of Todd Gallinger ("Gallinger Decl."), ¶ 3. Though Pedroza has responded to some discovery requests, Plaintiffs insist that he has not responded to many interrogatories, and has failed to verify his responses, to respond to interrogatories, and produce key Id. On July 29, 201, the Court issued an Order requiring Pedroza to produce all documents, to respond to Plaintiffs' interrogatories, and to pay sanctions of $2,500 within fourteen days of that Order. He has failed to do so. He did, however, submit to a Joint Stipulation filed along with Plaintiffs' second set of Motions to Compel on September 14, 2010. The Court further compelled Pedroza's response, and on November 3, 2010, Judge Block ordered Pedroza to pay an additional $536
Plaintiffs insist that they have attempted to meet and confer with Pedroza on numerous occasional, and did meet on February 9, 2011. Gallinger Decl. ¶ 13. Nonetheless, Pedroza refused to provide responses for the Joint Stipulation required under Local Rule 37-2.2. Id. at ¶ ¶ 17-18.
Accordingly, Plaintiffs filed the present Motion, and request: (1) attorneys fees and costs resulting from Pedroza's delays; (2) litigation sanctions; (3) that the Court enter default against Pedroza after striking his answer.
Pursuant to Federal Rule of Civil Procedure 37, a court has the discretion to strike pleadings and to dismiss a case if a party fails to comply with the court's discovery orders. However, because there is a strong preference for adjudicating cases on their merits, courts may only dismiss a case or enter a default judgment as a sanction where the violation is "due to willfulness, bad faith, or fault of the party." United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 (9th Cir. 1988) (quoting Wyle v. R.J. Reynolds Indus., Inc., 709 F.2d 585, 589 (9th Cir. 1983)). Additionally, the Ninth Circuit has consistently employed a five factor test to determine whether dismissing a case as a sanction is appropriate. The factors are: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the [opposing party]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996). Because the first two factors almost ...