BRANDON S. HAYS, Plaintiff,
JOHN DEERE LANDSCAPES, INC., Defendant.
ORDER GRANTING TERMINATING SANCTIONS Re: ECF No. 23
JON S. TIGAR, District Judge.
Defendant John Deere Landscapes, Inc. ("Defendant") has moved for terminating discovery sanctions. ECF No. 23.
A. Procedural History
In November 2012, Brandon S. Hays ("Plaintiff") filed this complaint against Defendant, his former employer, asserting violations of the California Labor Code and wrongful termination. Complaint for Damages ("Complaint"), ECF No. 1.
On May 1 and May 22, Plaintiff failed to appear for two noticed depositions. Pursuant to the Court's standing orders, Defendant submitted a letter brief on May 29, seeking to compel Plaintiff's attendance at a future deposition and seeking monetary sanctions sufficient to compensate Defendant for its costs in preparing for the depositions. ECF No. 23. The Court invited Plaintiff to submit a letter brief in response, but Plaintiff filed nothing with the Court. ECF No. 24. The Court found that Plaintiff's reason for failing to attend the May 1 deposition was unreasonable,  and that his failure to attend the second was completely unexplained. ECF No. 25. Pursuant to Rule 38(a)(1) of the Federal Rules of Civil Procedure, the court ordered Plaintiff to appear at a deposition at mutually agreed-upon date between June 10 and 13, and pursuant to Rule 37(d)(1)(A)(i), ordered Plaintiff to pay $5, 808.40 within thirty days to compensate Defendants for the costs of his failure to participate in discovery. Id.
Defendant noticed Plaintiff's deposition again, for June 12, and notified Plaintiff's attorney that it would be willing to consider an alternate time between June 10-13, if it would be preferable to Plaintiff. Declaration of Lauren M. Cooper ("Cooper Decl."), ECF No. 29, at ¶ 5 & Exh. D. Plaintiff's counsel neither replied to this communication nor responded to numerous other attempts by Defendant's counsel to reach him. Id., at ¶¶ 6-8 & Exh. D. Plaintiff did not attend the third scheduled deposition. Id., at ¶ 8-9. Plaintiff has also not lodged with the Court an affidavit demonstrating that he has paid the previously imposed sanction, as the Court ordered him to do.
Defendant filed this motion for terminating sanctions, or in the alternative for evidentiary sanctions, on June 18. ECF No. 28. Plaintiff filed no opposition. After the filing of the motion, Defendant filed another Discovery Letter Brief, in which it submits that Plaintiff has also failed, without explanation, to serve its responses to Defendant's second set of written discovery requests, which were due on June 24. ECF No. 31.
Subsequently, the Court noted that according to the website of the State Bar of California, both of Plaintiff's attorneys, James J. Peters and Sara Peters, were suspended on July 2, 2013 and therefore "ineligible to practice law." It appears from the Bar's website that Mr. Peters also failed to file a response to disciplinary charges filed against him by the Bar, and he was ordered inactive and not eligible to practice law on that basis as well on August 25.
The Court continued the hearing until September 5, mailed a notice of the continuance to the mailing address which Plaintiff's counsel registered with this Court, and ordered counsel to provide a copy personally to the Plaintiff. ECF No. 33. The mail was returned by the Postal Service as undeliverable. ECF No. 34. Neither Plaintiff nor either of his counsel appeared at the hearing.
Plaintiff asserts, and Defendant does not dispute, that Plaintiff is a citizen of Arizona, that Defendant is not a citizen of Arizona, and that the amount in controversy exceeds $75, 000. Complaint, at ¶¶ 1-3. This Court therefore has diversity jurisdiction over this case pursuant to 28 U.S.C. § 1332.
C. Legal Standard
"Federal Rule of Civil Procedure 37(b)(2) gives a district judge discretion to make such orders... as are just' in regard to a party's failure to obey a discovery order, including dismissal." Valley Engineers Inc. v. Elec. Eng'g Co. , 158 F.3d 1051, 1056 (9th Cir. 1998). The Ninth Circuit has "come up with a five-part test' to determine whether a dismissal sanction is just: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.'" Id . (quoting Malone v. United States Postal Service , 833 F.2d 128, 130 (9th Cir.1987) (alterations in the original). "[W]here a court order is ...