September 11, 2013
YOLANDA YVETTE BELL, Plaintiff,
UNITED STATES DEP'T OF INTERIOR, KENNETH SALAZAR, Secretary, Defendant.
ORDER AND FINDINGS & RECOMMENDATIONS
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. 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. 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. 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. 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 appear to show cause why her case should not be dismissed for failure to appear for the court-ordered examination. ECF No. 136.
Defendant's application for an order to show cause requests both reimbursement for Dr. Mills' $3, 600.00 examination fee and an order of dismissal. ECF No. 133. Defendant argues that plaintiff's refusal to attend the examination came just two weeks before the September 3, 2013, discovery cut-off deadline, and has deprived defendant of "critical evidence needed to prepare a defense to her allegations." Id. at 2. Defendant points to plaintiff's prior obstructions of discovery efforts such as her failure to respond to discovery requests, her efforts to quash defendant's third party subpoenas, and now her attempt to "evade" her independent medical examination. Id . In opposing dismissal, plaintiff repeats her argument, inter alia, that Dr. Mills' office was in a residential area and he is not licensed to practice in Maryland, therefore she was justified in not attending the court-ordered independent medical examination. ECF No. 137. For the reasons discussed below, the court recommends that plaintiff's action be dismissed with prejudice for repeated failures to comply with discovery rules and court orders.
A. Legal Standard
"Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with any order of the court." Ferdik v. Bonzelet , 963 F.2d 1258, 1260 (9th Cir. 1992). "A district court must weigh five factors in determining whether to dismiss a case for failure to comply with a court order: "(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 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Malone v. U.S. Postal Service , 833 F.2d 128, 130 (9th Cir. 1987) (internal quotations and citations omitted). These relevant factors should be explicitly addressed when contemplating dismissal. Pagtalunan v. Galaza , 291 F.3d 639, 641 (9th Cir. 2002). However, these factors are "a way for a district judge to think about what to do, not a series of conditions precedent before the judge can do anything." Valley Engineers, Inc. v. Electric Engineering Co. , 158 F.3d 1051, 1057 (9th Cir. 1998).
For the reasons discussed below, the court finds each of the factors set forth in Malone weigh in favor of dismissal of this action pursuant to Fed.R.Civ.P. 41(b).
(1) The Public's Interest in Expeditious Resolution of Litigation
"The public's interest in expeditious resolution of litigation always favors dismissal." Yourish v. California Amplifier , 191 F.3d 983, 990 (9th Cir. 1999). This action was initiated over a year and a half ago in December 2011. See Ferdik , 963 F.2d at 1261 (finding dismissal was strongly favored because the plaintiff's "case dragged on for over a year and a half before it finally was dismissed"). Plaintiff's failure to comply with specific court orders, as well as her failure to conduct any meaningful discovery during the eight months the discovery period has been open has impeded the interest in expeditious resolution of this litigation.
(2) The Court's Need to Manage Its Docket
"The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest." Pagtalunan , 291 F.3d at 642 (citing Yourish , 191 F.3d at 990). Here, plaintiff's deliberate delay in litigating her action by attending to the matters required by the Federal Rules of Civil Procedure, compounded by the flurry of motions she has instead filed over the past several months, have consumed a significant amount of the court's time and resources. Despite the time and effort expended, and the twice-extended discovery deadline which has given plaintiff more than adequate time to begin to litigate her action, this matter has not moved forward toward resolution on the merits. Instead, plaintiff has devoted a significant amount of time interfering with defendant's attempts to complete discovery in this case. Plaintiff's obstructionist behavior has included her refusal to attend her deposition thereby requiring a noticed motion, hearing and an order that she attend, her failure to respond to written discovery, and her deliberate failure to comply with this court's order to appear for a Rule 35 examination-even after a telephonic conference call in which the court reconfirmed its order that the exam go forward. Considering plaintiff's incessant delay and failure to comply with court-imposed deadlines and orders to comply with discovery rules, the court does not foresee a change in her unwillingness to recognize the court's need to manage its docket. See id. ("It is incumbent upon the Court to manage its docket without being subject to routine noncompliance of litigants.") (citation omitted); see also Ferdik , 963 F.2d at 1261 (finding dismissal appropriate because the action "consumed large amounts of the court's valuable time.") The court has repeatedly warned and admonished plaintiff, all with no affect. Therefore, the court finds this factor weighs in favor of dismissal.
(3) The Risk of Prejudice to the Defendants
"To prove prejudice, a defendant must establish that plaintiff's actions impaired defendant's ability to proceed to trial or threatened to interfere with the rightful decision of the case." Pagtalunan , 291 F.3d at 642 (citing Malone , 833 F.2d at 131); see also Adriana Intern. Corp. v. Thoeren , 913 F.2d 1406, 1412 (9th Cir. 1990). Here, defendant has been prejudiced by plaintiff's actions. The discovery cut-off was September 3, 2013. Defendant scheduled plaintiff's independent medical examination for August 21, 2013. The lack of the independent medical examination deprives defendant of the opportunity to prepare a defense to plaintiff's allegations which include numerous health-related injuries that she allegedly sought treatment for. Moreover, this is not the first time plaintiff has obstructed defendant's discovery efforts. Plaintiff has failed to both timely respond to discovery requests and appear for her noticed deposition. See ECF No. 83; see also In re Phenylpropanolamine (PPA) Products Liability Litigation , 460 F.3d 1217, 1227 (9th Cir. 2006) ("[t]he law also presumes prejudice from unreasonable delay") (citing Morris v. Morgan Stanley & Co. , 942 F.2d 648, 652 (9th Cir. 1991)). Defendant has had to repeatedly engage plaintiff in unproductive calls, emails and correspondence imploring her to comply with the discovery rules and the court's orders. And after the meet and confer attempts failed, defendants have had to pursue motions and attend hearings to obtain orders for plaintiff to comply. Plaintiff has needlessly increased the cost and burden of responding to her allegations in the complaint.
The court finds that plaintiff's actions have impaired defendant's ability to proceed to trial or prepare an effective defense to her allegations. See Adriana , 913 F.2d at 1412 (finding prejudice was established because "the repeated failure of [plaintiff] to appear at scheduled dispositions compounded by their continuing refusal to comply with court-ordered production of documents constitutes an interference with the rightful decision of the case"); see also Malone , 833 F.2d at 131 ("intentional and unjustified violation of the pretrial order prejudiced the Government in a manner which justifies dismissal"). Therefore, the court finds this factor weighs in favor of dismissal.
(4) The Public Policy Favoring Disposition of Cases on Their Merits
"Public policy favors disposition of cases on the merits." Pagtalunan , 291 F.3d at 643 (citing Hernandez v. City of El Monte , 138 F.3d 393, 399 (9th Cir. 1998)). "At the same time, a case that is stalled or unreasonably delayed by a party's failure to comply with deadlines and discovery obligations cannot move forward toward resolution on the merits. Thus, [the Ninth Circuit has] also recognized that this factor lends little support to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction." In re Phenylpropanolamine , 460 F.3d at 1228 (internal quotation and citation omitted).
Here, plaintiff has made little effort to move this case forward on the merits. She has failed to timely respond to discovery, appear for her deposition and now appear for her court-ordered medical examination. While plaintiff claims she is willing to appear for the examination (apparently on terms more to her liking), her actions indicate otherwise. The court finds that plaintiff's repeated delays thus far cause this factor to weigh in favor of dismissal.
(5) The Availability of Less Drastic Alternatives
It is important for the district court to consider less drastic alternatives than dismissal of a party's action. Pagtalunan , 291 F.3d at 643 (citing Yourish , 191 F.3d at 992). As discussed below, the court has carefully done so here.
[The Ninth Circuit] conducts a three-part analysis when determining whether a district court has properly considered the adequacy of less drastic sanctions: (1) did the court explicitly discuss the feasibility of less drastic sanctions and explain why alternative sanctions would be inappropriate, (2) did the court implement alternative sanctions before ordering dismissal, and (3) did the court warn the party of the possibility of dismissal before actually ordering dismissal?
Adriana , 913 F.2d at 1412-13 (citing Malone , 833 F.2d at 132). "But despite all this elaboration of factors, [the Ninth Circuit has] said that it is not always necessary for the court to impose less serious sanctions first, or to give any explicit warning." Valley Engineers Inc. , 158 F.3d at 1057 (citing Adriana , 913 F.2d at 1413).
With regard to feasibility, the court has considered less drastic sanctions and found them to be ineffective. The court considered imposing monetary sanctions on plaintiff at the hearing on defendant's motion to dismiss and motion for sanctions on May 29, 2013. However, given plaintiff's representations to defense counsel and to the court of her financial hardship, the court determined that a monetary sanction would simply go unpaid and would not deter future noncompliance. During the court's most recent order to show cause hearing, on August 28, 2013, plaintiff again conveyed her financial hardship, indicating that she was unsure how she would be able to pay her rent the following week. Thus, monetary sanctions, while less drastic, offers no effective means of deterring plaintiff's recalcitrance.
With regard to implementation of alternative sanctions, rather than imposing monetary sanctions on plaintiff following the court's May 29, 2013, hearing, the court resorted to several firm warnings that future noncompliance with this court's orders as well as the Federal Rules and Local Rules, could result in dismissal of her action. ECF Nos. 83, 132; see Malone , 833 F.2d at 132 ("warning a plaintiff that failure to obey a court order will result in dismissal can suffice to meet the consideration of alternatives' requirement") (citations omitted). In an effort to avoid the harsh sanction of dismissal, the court warned plaintiff of the possibility of dismissal but also made the following efforts to accommodate her alleged hardships: twice extending the discovery cut-off; ordering the parties to attempt to conduct plaintiff's deposition by video conference so plaintiff would not have to travel from Virginia to this district; suggesting the parties discuss alternative methods of production of documents in order for plaintiff to avoid the cost of copying and mailing responses to defendant's requests for production; and recognizing defendant's efforts to accommodate plaintiff by ordering plaintiff to appear for a Rule 35 examination in Maryland rather than in the forum state of California. ECF Nos. 65, 83, 129; see Malone , 833 F.2d at 132 (finding "district court's imposition of less drastic measures for lack of preparation during the aborted first trial [was] sufficient indication... that alternatives were considered prior to dismissal of [the plaintiff's] case for lack of preparation")
With regard to warning plaintiff of the possibility of dismissal before actually ordering dismissal, plaintiff has been warned on more than one occasion that failure to comply with the court's orders and discovery rules could result in dismissal of her action. See ECF No. 83 at 3 (warning plaintiff that "failure to timely respond to further discovery requests or to appear for deposition will result in sanctions which may include dismissal of her case"). Moreover, the court specifically warned plaintiff that her case could be dismissed if she failed to appear for her independent medical examination. ECF No. 132; see Adriana , 913 F.2d at 1413 (the court must "identify the party's action that will lead to the sanction") (citing In re Rubin , 769 F.2d 611, 618 n.7 (9th Cir. 1985)). At some point, enough is enough.
Given the futility of imposing monetary sanctions, the court's efforts to accommodate plaintiff, the implementation of several prior warnings, and the court's specific warning that plaintiff's case could be dismissed if she failed to comply with this court's order to appear for her examination, the court finds this factor weighs in favor of dismissal.
For the foregoing reasons, the court finds that the above-referenced factors all weigh in favor of dismissal. Plaintiff's noncompliance has been deliberate and has caused repeated delays and rescheduling of deadlines, an expenditure of a significant amount of this court's time and resources, and an impairment of defendant's ability to proceed to trial. Therefore, the court recommends dismissing plaintiff's action for a failure to comply with court orders.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's August 13, 2013, motion for a reasonable accommodation (ECF No. 121) is denied;
2. Plaintiff's August 13, 2013, motion to continue the scheduling order deadlines (ECF No. 122) is denied;
3. Plaintiff's August 19, 2013, request to seal (ECF No. 131) and August 26, 2013, request to seal (ECF No. 138) are denied;
4. Plaintiff's August 26, 2013 motion for recusal (ECF No. 137) is denied;
5. Plaintiff's August 26, 2013, ex parte application for an order shortening time (ECF No. 139) is denied as moot; and
6. The Clerk is directed to reassign this action to the undersigned.
Further, it is HEREBY RECOMMENDED that this action be dismissed with prejudice for failure to comply with court orders.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).