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Joe Hand Promotions, Inc. v. Tolone

United States District Court, Ninth Circuit

September 24, 2013



CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable William D. Keller, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.


Throughout this litigation, Defendant Christopher Tolone ("Tolone") has failed to take any meaningful action toward discharging his discovery obligations. Despite formal discovery requests and a Court order, Tolone willfully has refused to give Plaintiff basic written discovery and willfully has failed to appear for his deposition. Without explanation, Tolone also has failed to appear for a settlement conference and for two motion hearings. Terminating sanctions against Tolone are now appropriate.


Plaintiff filed this action on May 16, 2011. Tolone, pro se, filed an Answer on August 2, 2011.

On November 4, 2011, the Magistrate Judge ordered that the parties appear in person for a settlement conference on November 28, 2011. On November 28, 2011, counsel for Plaintiff appeared, but no Defendant appeared.

Defendant Big Rock Inn, the only named Defendant other than Tolone, has never filed an Answer. On June 22, 2012, the Clerk entered the default of Defendant Big Rock Inn.

On October 26, 2012, Plaintiff filed a "Motion to Compel Discovery and an Order for Sanctions."[1] The Magistrate Judge ordered that a hearing on this motion take place on November 9, 2012. On November 9, 2012, counsel for Plaintiff appeared, but Tolone did not appear.

By Minute Order filed November 9, 2012, the Magistrate Judge ordered, inter alia, that, within thirty days of the date of the Order, Tolone:

(1) serve answers without objection to all of Plaintiff's interrogatories; (2) serve responses without objection to all of Plaintiff's requests for production; (3) permit the inspection and copying of all documents responsive to Plaintiff's requests for production (except the documents responsive to Request No. 23 that do not concern either the PROGRAM or the Big Rock Inn need not be produced); and (4) submit to the Premises Inspection requested by Plaintiff.

The same Order required that Tolone appear for his deposition within sixty days of the date of the Order. The Order specifically cautioned Tolone that "failure timely to comply with this Order may result in the imposition of drastic sanctions including, without limitation, the striking of his Answer and Entry of Judgment against him."

Nevertheless, Tolone failed to comply with any aspect of the November 9, 2012 Order. On July 17, 2013, Plaintiff filed a "Motion to Strike Defendants' Answer and Affirmative Defenses" ("the Motion"). The Motion seeks, inter alia, the striking of Tolone's Answer and the entry of his default.[2] Tolone did not file any opposition to the Motion and did not appear at the August 23, 2013 hearing on the Motion.


Rule 37(b)(2) of the Federal Rules of Civil Procedure authorizes the sanctions of striking pleadings and rendering default against parties who disobey a court's discovery orders. To justify the imposition of such case-dispositive sanctions, the Court must find that the discovery violations were due to "willfulness, bad faith, or fault of the party." See Commodity Futures Trading Commission v. Noble Metals International, Inc. , 67 F.3d 766, 770-71 (9th Cir. 1995), cert. denied, 519 U.S. 815 (1996) (citations and internal quotations omitted); see also Societe Internationale v. Rogers , 357 U.S. 197, 212 (1958). Disobedient conduct not outside the control of the litigant is all that is required to demonstrate willfulness, bad faith or fault. Henry v. Gill Industries, Inc. , 983 F.2d 943, 948-49 (9th Cir. 1993) (inability to formalize retainer agreement with counsel and party's absence due to out-of-town business trip were not matters "outside the control of the litigant"); United Artists Corp. v. La Cage Aux Folles , 771 F.2d 1265, 1270 (9th Cir. 1985) ("travel schedule" preventing party from answering interrogatories for three months no excuse), abrogated on other grounds, Mt. Graham Red Squirrel v. Madigan , 954 F.2d 1441, 1462 (9th Cir. 1992). In evaluating the propriety of sanctions, the Court considers "all incidents of a party's misconduct." Adriana International Corp. v. Thoeren , 913 F.2d 1406, 1411 (9th Cir. 1990), cert. denied, 498 U.S. 1109 (1991) (citation omitted).

The Ninth Circuit has identified five factors that a court must consider when asked to impose terminating sanctions: (1) the public's interest in the expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to the party seeking terminating sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Toth v. Trans World Airlines, Inc. , 862 F.2d 1381, 1385 (9th Cir. 1988). "These factors are not a series of conditions precedent before the judge can do anything, but a way for a district judge to think about what to do." In re Phenylpropanolamine (PPA) Products Liability Litigation , 460 F.3d 1217, 1226 (9th Cir. 2006) (citation and internal quotations omitted). Consideration of these factors yields the conclusion that this Court should impose terminating sanctions on Tolone.

Factors 1 and 2 obviously militate in favor of granting terminating sanctions. As to Factor 3, the delays occasioned by Tolone's discovery abuse significantly have prejudiced Plaintiff. The absence of timely discovery has deprived Plaintiff of the potential opportunity to pursue a motion for summary judgment or summary adjudication of issues. The discovery willfully withheld by Tolone is central, rather than peripheral, to the issues in this case. Tolone's discovery abuse has made Plaintiff's trial preparation practically impossible. See In re Exxon Valdez , 102 F.3d 429, 433 (9th Cir. 1996) ("total failure to respond to discovery and the time consumed by attempting to secure compliance" show prejudice); see also Estrada v. Speno & Cohen , 244 F.3d 1050, 1059 (9th Cir. 2001) (upholding entry of default judgment where defendant failed to appear at deposition); Payne v. Exxon Corporation , 121 F.3d 503, 508 (9th Cir. 1997) (finding prejudice where parties' "repeated failure to provide documents and information in a timely fashion prejudiced the ability of [the opposing parties] to prepare their case for trial"); Wanderer v. Johnston , 910 F.2d 652, 656 (9th Cir. 1990) (prejudice "palpable" where defendants failed to appear at depositions and failed to comply with court orders to produce discovery).

Factor 4, the public policy favoring disposition of cases on the merits, usually weighs against terminating sanctions. However, "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." In re Phenylpropanolamine (PPA) Products Liability Litigation , 460 F.3d at 1228. Thus, the fourth factor is entitled to little weight where a party completely refuses to cooperate in discovery. See id.; In re Exxon Valdez , 102 F.3d at 433 (policy favoring disposition on merits deemed to be of little weight in light of parties' "total refusal to provide discovery").

With respect to Factor 5, the Court must consider the impact of the sanction and the adequacy of less drastic alternative sanctions. Adriana International Corp. v. Thoeren , 913 F.2d at 1412. "Giving another chance following a failure to comply is... a sanction, albeit a lenient one." In re Phenylpropanolamine (PPA) Products Liability Litigation , 460 F.3d at 1229 n.5 (citation omitted). In connection with the October 26, 2012 motion, the Magistrate Judge gave Tolone another chance to comply with his discovery obligations. At the same time, the Magistrate Judge warned Tolone that failure to comply could result in terminating sanctions. A warning that sanctions may be imposed "can itself meet the consideration of alternatives' requirement." Id. at 1237. At this late date, sanctions less drastic than terminating sanctions would appear to be futile, given Tolone's total noncompliance with his discovery obligations, his willful violation of the Court's order, his unexplained failure to appear at hearings and at a settlement conference, and his wholesale failure to participate in this litigation beyond the filing of an Answer more than two years ago.


Tolone's repeated, willful, bad faith discovery abuse merits terminating sanctions. After balancing the relevant factors, the Magistrate Judge recommends that the Court issue an order striking Tolone's Answer and entering his default.[3]

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