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Bell v. United States Dep't of Interior

United States District Court, Ninth Circuit

September 11, 2013



EDMUND F. BRENNAN, Magistrate Judge.


On August 28, 2013, a hearing was held on this court's order to show cause. ECF No. 141. Plaintiff appeared telephonically in pro per, and Victoria Boesch appeared on behalf of defendant. After considering the supporting documentation and oral arguments, and for the reasons discussed at the hearing, IT IS HEREBY RECOMMENDED that this action be dismissed for failure to comply with discovery rules and this court's orders.


On December 27, 2011, plaintiff, a former GS-14 Supervisory Contract Specialist for the Department of the Interior Bureau of Reclamation ("DOI/BOR"), initiated her employment discrimination action in the Northern District of California naming DOI/BOR; Kenneth Salazar, Secretary; Donald Glaser; Katherine Thompson; and Joni Ward as defendants.[1] ECF No. 1. On January 12, 2012, plaintiff filed her operative first amended complaint, alleging violations of (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; (2) the Rehabilitation Act of 1973, 29 U.S.C. §§ 710 et seq.; (3) reprisal for engaging in protected activities; and (4) a hostile and abusive work environment.[2] ECF No. 5.

On November 20, 2012, the parties filed a joint status report. ECF No. 58. Following the court's November 29, 2012, initial scheduling conference, the court ordered the parties to complete discovery by May 3, 2013. ECF No. 62. On February 6, 2013, the parties filed a stipulation to continue the scheduling order dates by two months. ECF No. 64. This stipulation was entered into pursuant to plaintiff's request to accommodate her illness. See ECF No. 71-2 at 19-20. On February 21, 2013, the court granted the parties' stipulation, and continued the discovery cut-off deadline to July 3, 2013. ECF No. 65.

On March 22, 2013, plaintiff filed a motion to continue the scheduling order deadlines by an additional four months because she had been "severely ill" and "experiencing severe financial hardship." ECF No. 68. Defendant opposed plaintiff's motion, arguing that she had failed to conduct any discovery, which included a failure to respond to existing discovery requests, and to appear for her properly noticed deposition. ECF No. 74. Based on plaintiff's failures to respond to defendant's properly served and noticed discovery requests, defendant filed a motion to dismiss for failure to prosecute and a motion for discovery sanctions in the form of dismissal. ECF Nos. 71, 75.

In defendant's opposition to plaintiff's motion to continue, and related motions for dismissal, defendant summarized plaintiff's failures to provide discovery responses or deposition testimony. ECF No. 71. Defendant's first set of discovery requests were served on January 25, 2013. Id. at 2, Exs. B and C. At plaintiff's request, the deadline for her responses to these discovery requests was extended to March 25, 2013. Id., Ex. E. Defendant served a second set of discovery requests on April 2, 2013. As of the filing of defendant's motions in mid-May, plaintiff had not provided responses to these requests which were due on March 25, 2013 and May 6, 2013, respectively. ECF No. 71-1 at 3.

With regard to plaintiff's deposition, defendant originally noticed it for March 27, 2013, but later rescheduled it to April 25, 2013, pursuant to plaintiff's request. ECF No. 71-1 at 2, Ex. E. On April 24, 2013, plaintiff e-mailed defense counsel indicating she would not appear for her April 25, 2013, deposition, and did not provide an alternate date. Id., Ex. M. On April 24, 2013, defense counsel responded to plaintiff's e-mail, explaining that defendant would "file a motion with the Court regarding [plaintiff's] failure to respond to discovery that seeks all available remedies, which may include termination of [plaintiff's] case." Id. at 3, Ex. N. Despite defendant's warning, and with the understanding that she would be facing a motion to dismiss her action, plaintiff failed to appear for her April 25, 2013, deposition. Id. at 3.

On May 29, 2013, the court heard plaintiff's motion to continue the scheduling order; and defendant's motion to dismiss for failure to prosecute and motion for discovery sanctions. ECF No. 82. During the hearing, the undersigned explained to plaintiff that an extension of the scheduling order deadlines cannot be granted without good cause which requires a showing of due diligence. The court noted that although plaintiff did not dispute that she had failed to timely respond to defendant's discovery efforts, her request for additional time offered no clear explanation of what efforts or actions she took to conduct any meaningful discovery or to respond to the defendant's discovery requests up to that point. See ECF No. 68. Given plaintiff's lack of effort to comply with her obligations and the absence of any showing that she was not able to meet the deadlines in spite of those efforts, plaintiff failed to demonstrate the requisite good cause for an extension of time.

Notwithstanding plaintiff's lack of diligence, the undersigned took account of plaintiff's claimed medical and financial difficulties and her pro se status, and continued the discovery and dispositive motions cut-off by two additional months, setting a September 3, 2013, discovery cut-off deadline. ECF No. 83. The undersigned also ordered that "[n]o further modifications of the scheduling order will be granted except upon a showing of good cause" per Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604 (9th Cir. 1992). Id . While considering defendant's motion to dismiss, the court noted that it was premature to impose sanctions in the form of dismissal without having first warned the plaintiff that dismissal was imminent. Id . (citing Johnson v. U.S. Dept. of Treasury , 939 F.2d 820, 825-26 (9th Cir. 1991)). The court therefore explicitly put plaintiff on notice that if she failed to litigate her case or comply with court rules or orders, her case could be dismissed. Id . The court also denied defendant's motion for discovery sanctions. Id . (citing Hyde & Drath v. Baker , 24 F.3d 1162, 1167 (9th Cir. 1994)).

On July 31, 2013, defendant filed a motion to compel independent medical examination pursuant to Fed.R.Civ.P. 35. ECF No. 102. Following the court's August 7, 2013, hearing on defendant's motion, and plaintiff's subsequent opposition thereto, the court issued an order granting defendant's motion and ordering plaintiff to appear for an independent medical examination by Dr. Mark Mills, M.D., on August 21, 2013, in Chevy Chase, Maryland.[3] ECF No. 129. In the order granting defendant's motion, the court found good cause for a Rule 35 examination because plaintiff's allegations that defendant's conduct caused her numerous physical and mental health-related injuries put her mental state "genuinely in controversy." Id. at 12 (citing Schlagenhauf v. Holder , 379 U.S. 104, 118 (1964)). The court also addressed plaintiff's hardship concerns regarding a forty-mile drive from her home in Virginia to Maryland for the examination. The court found, among other things, that "[t]he location for the examination is in reasonable proximity to the location where plaintiff resides and any inconvenience or burden from driving to the exam is minimal in contrast to the burden plaintiff will face by proceeding to trial in this case." Id. at 13.

Plaintiff did not seek reconsideration of this court's August 19, 2013, order compelling her independent medical exam. See Fed.R.Civ.P. 72; L.R. 303.

The morning of the scheduled examination, on August 21, 2013, plaintiff drove to Dr. Mills' office but would not leave her car to enter his office for the examination. Plaintiff refused to appear for the examination claiming that she was concerned with Dr. Mills' office location. That same morning, following some telephonic discussions between the parties, the court held a telephonic conference with the parties during which plaintiff articulated the following additional concerns: Dr. Mills' office was located in a residential area, his office is not zoned properly, and he is not licensed to practice in Maryland. Defense counsel represented that Dr. Mills spoke with plaintiff outside his office assured her that she was at his office and offered for her to look around his office. The undersigned considered plaintiff's objections and specifically declined to vacate the August 19, 2013, order requiring the examination. ECF No. 132. During the telephone conference, the court explained to plaintiff that the court had previously found Dr. Mills to be eminently well-qualified to conduct the examination, and the fact that his office is in what she considers a residential area does not alter the court's ruling. The court specifically admonished plaintiff as to the consequences of failing to comply with the court's order "and that sanctions could include an order to compensate for the costs incurred by defendant for having the medical expert waiting on plaintiff, and/or an order for dismissal of the action." Id . The court advised plaintiff that if she violated the order, the matter would proceed by way of an Order to Show Cause. The court noted that defendant would have to file a motion for an order to show cause in the event plaintiff failed to proceed with the scheduled examination. Id.

Notwithstanding the court's ruling, and the earlier admonition on August 21, 2013, regarding failure to comply with discovery rules and orders, plaintiff refused to comply with this court's explicit order to appear for her examination. Accordingly, defendant filed an application for order to show cause regarding sanctions.[4] ECF No. 133. Defendant seeks reimbursement of Dr. Mills' examination fee as well as dismissal of plaintiff's action. On August 26, 2013, this court ordered plaintiff to ...

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