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Judith Fonseca v. City of Red Bluff


August 5, 2011


The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge


Plaintiff Judith Fonseca ("Plaintiff") instituted the present lawsuit against Defendant City of Red Bluff ("Defendant") for injuries she claims to have sustained as a result of falling from her wheelchair. In addition to suing Defendant for negligence per se as a result of claimed accessibility issues that caused her to fall, Plaintiff also alleges claims under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), and other state law claims protecting the disabled.

On April 4, 2011, Plaintiff's counsel, the Disability Advocacy Group, APLC, moved to withdraw as attorney of record after telling defense counsel that difficulties in corresponding with Plaintiff forced them to seek withdrawal. See Decl. Of Kevin J. DeHoff, ¶ 5. In the meantime, Defendant's discovery requests had gone unanswered. On May 6, 2011, counsel's motion to withdraw, which Plaintiff had not opposed, was granted.

On April 5, 2011, Defendant moved to compel Plaintiff's responses to both interrogatories and document production requests. That motion was granted, and Plaintiff was both ordered to respond to the outstanding discovery by June 13, 2011, and ordered to personally pay sanctions in the amount of $3,040.00 by the same date.

After June 13, 2011 came and went without either payment or response by Plaintiff, defense counsel wrote Plaintiff a letter indicating that if she did not comply with the Court's order by July 1, 2011, Defendant would proceed with filing a motion to dismiss for failure to comply with a court order under Federal Rule of Civil Procedure 37(b),*fn1 as well as for failure to prosecute under Rule 41(b). Plaintiff's continued failure to make any response prompted the motion to dismiss now before the Court. Plaintiff has failed to oppose or respond to that motion in any way.

Rule 37(b)(2)(A)(v) provides, in pertinent part, that "[i]f a party...fails to obey an order to provide or permit discovery....the court where the action is pending may issue further just orders", including dismissal. Dismissal is proper under Rule 37 for a serious or total failure to respond to discovery even without a court order. Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981).

The factors to be considered in determining the propriety of dismissal under Rule 37 all point towards dismissal. See, e.g., Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). Plaintiff's failure to respond both to the Court and to opposing counsel has been complete. The public interest in the expeditious resolution of litigation, the court's need to manage its docket, and the risk of prejudice to defendants by allowing the suit to continue all mandate in favor of dismissal. Moreover, less drastic sanctions have already been imposed in the form of both court orders and monetary sanctions, without success. Finally, while the Court recognizes the public policy favoring disposition of cases on the merits, Plaintiff's total failure to respond and lack of cooperation makes that goal impossible in this matter. See id. Consequently, dismissal under Rule 37(b) is warranted.

Plaintiff's alternative request for dismissal under Rule 41(b) is also well taken. Plaintiff has failed to respond to written discovery, has failed to obey the Court orders to respond, and has failed to pay mandated sanctions. She has made no apparent attempt to prosecute her case for many months.

Accordingly, dismissal under Rule 41(b), which is based on the same factors outlined about with respect to Rule 37(b), is indicated.

Given the foregoing, then, dismissal is warranted under both Rule 37(b) and Rule 41(b). Defendant's Motion (ECF No. 31) is accordingly GRANTED.*fn2 Plaintiff's lawsuit is hereby dismissed, with prejudice. The Clerk of Court is directed to close this file.


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