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Terrilyn Mccain v. Mangham

January 24, 2013

TERRILYN MCCAIN, PLAINTIFF,
v.
MANGHAM, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

On January 23, 2013, the undersigned held a hearing on the defendants' January 3, 2013 motion for terminating sanctions or, in the alternative, motion to compel. Alberto Gonzalez appeared on behalf of defendants California Highway Patrol ("CHP") Officers Mangham, Walling, and Pini ("the CHP defendants"). Floyd Cranmore appeared on behalf of defendants Mike's Towing Service and Michael Olivarez ("the Towing defendants"). Plaintiff did not file an opposition to the motion and did not make an appearance at the hearing. On review of the motion, the documents filed in support, examination of the docket, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND On March 14, 2011 at approximately 7:30 p.m., plaintiff was driving eastward on "highway 4" in her automobile, a "1994 Jaguar SJX," when she was pulled over by defendant CHP Officer Mangham. During this traffic stop, Officer Mangham asked plaintiff for identification. Plaintiff refused to provide it and stated that she had a "right to travel" on the road. Officer Mangham again asked for identification, and plaintiff again refused to provide it. At this point, Officer Mangham arrested plaintiff without obtaining a warrant. Defendants CHP Officers Pini and Walling arrived on the scene, and Officer Pini ordered that plaintiff be searched. Plaintiff was then taken to the San Joaquin County Jail where she was booked. Plaintiff's car was towed away and impounded by defendant Mike's Towing Service.

Plaintiff initiated this suit on May 11, 2011 against the CHP, Officers Mangham, Pini, and Walling, and Mike's Towing Service and Michael Olivarez, the owner of the towing company. Plaintiff alleged violations of her constitutional rights provided by the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Each of the plaintiff's enumerated claims for relief alleged, at least in part, that the defendants' actions violated her "right to travel on the public right of ways [sic]." Plaintiff also alleged that the Towing Defendants acted jointly or in concert with the state defendants.

On June 2, 2011, defendant CHP filed a motion to dismiss on Eleventh Amendment grounds. ECF No. 4. This motion was granted on December 12, 2011, and the CHP was dismissed from this action with prejudice. ECF No. 91.

On June 11, 2011, the Towing Defendants filed a motion to dismiss. ECF No. 16. On July 18, 2011, these same defendants filed a motion for sanctions and for order declaring plaintiff a vexatious litigant. ECF No. 33. On December 12, 2011, the Towing defendants' motion to dismiss was granted in part, and any of the plaintiff's claims that were premised on her "right to travel" were dismissed with prejudice. ECF No. 91. The motion to dismiss and the motion for sanctions were denied in all other respects. Id.

On March 22, 2012, plaintiff filed the operative first amended complaint, which sets forth the same factual allegations as in the original complaint. All of the defendants have filed timely answers in this action. See ECF Nos. 75, 112, 125, 128.

On November 28, 2012, plaintiff filed a motion for summary judgment, set for hearing on January 23, 2013.

On January 3, 2013, the defendants filed a joint motion for terminating sanctions or, in the alternative, motion to compel. Defendants assert that they cannot properly respond to plaintiff's motion for summary judgment because plaintiff has refused to provide them with any discovery at all. In order to properly consider this motion, the court continued the hearing on plaintiff's motion for summary judgment to March 13, 2013. By order dated January 7, 2013, plaintiff was directed to file a response to the defendants' joint motion for sanctions by January 16, 2013. As of the date of the hearing, she has not responded to the court order. She also failed to appear at the hearing.

DISCUSSION

A. The Parties' Joint Motion

Defendants jointly move for dismissal of this action pursuant to Rules 37 and 41 of the Federal Rules of Civil Procedure because of plaintiff's failure to comply with the Federal Rules and the Local Rules. Specifically, they allege that plaintiff has repeatedly failed to participate in discovery in this case.*fn1 Alternatively, they seek an order directing plaintiff to respond to their discovery requests, as well as a modification to the pretrial scheduling order.

In support of their motion, the defendants highlight the following instances in which plaintiff has failed to participate in discovery:

1. Plaintiff failed to respond to the CHP defendants' October 19, 2012 request for admissions, and further failed to respond to the CHP defendants' December 2, 2012 meet and confer letter. Gonzalez Decl. ¶¶ 4, 9.

2. Plaintiff failed to respond to the Towing defendants' November 13, 2012 discovery requests, which included request for production of documents, request for admissions, and interrogatories, and further failed to respond to the Towing defendants' December 17, 2012 meet and confer letter. Cranmore Decl. ¶¶ 2-4.

3. On November 26, 2012, plaintiff filed a document stating, in full: NOTICE TO DEFENDANTS The following four defendants are in non-compliance with the Federal Rules of Civil Procedure 7, 8, and 12, and failed they failed [sic] to take their responsibilities seriously and file a timely responsive pleading, within 21 days, to plaintiff's complaint and are clearly in default; a motion to dismiss is not a pleading.

1) The California ...


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