ORDER DENYING PLAINTIFFS' MOTION TO STRIKE ANSWER; FOR DEFAULT JUDGMENT; AND FOR A FINDING OF LIABILITY [doc. #165]
M. JAMES LORENZ, District Judge.
On May 31, 2013, Plaintiffs The Estate of Anastacio Hernandez-Rojas filed a motion to strike the answer of Defendant Customs and Border Protection Agent 7663 ("Agent 7663"), to obtain a default judgment against him, and for a finding of liability as to Agent 7663 and Defendant United States pursuant to Federal Rule of Civil Procedure 37(b). The motion has been fully briefed and the Court found this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the following reasons, the Court DENIES Plaintiffs' motion.
On May 28, 2010, United States Border Patrol agents arrested Mr. Hernandez-Rojas and his brother. (TAC ¶ 43-44.) Mr. Hernandez-Rojas and his brother were subsequently turned over to agents of the Wackenhut Company. ( Id. ¶ 54.) They were then transported to the Border Patrol Detention Facility and turned over to two of the Defendants, Border Patrol Agents V315 and V325. ( Id. ¶ 57, 59.) After being taken to the processing area, Mr. Hernandez-Rojas complained about his treatment at the hands of Agent V325, requested medical attention, and asked to appear before an immigration judge. ( Id. ¶ 75-76.) In response to his requests, Border Patrol Supervisor V61 allegedly ordered the Agents to remove Mr. Hernandez-Rojas from the United States. ( Id. ¶ 82.)
Mr. Hernandez-Rojas was taken to a border area known as "Whiskey 2, " where Agents allegedly struck him with batons, threw him to the ground, and "punched, kicked and stepped on [his] head and body." (TAC ¶ 86, 89-92.) A group of civilians began taking photographs and videos of the events and allegedly screamed for the agents to stop. ( Id. ¶ 94-95.) Agent V7663 allegedly shot Mr. Hernandez-Rojas with his Taser gun five times. ( Id. ¶ 107, 114.) Although Mr. Hernandez-Rojas cried for help and pleaded for him to stop, Agent 7663 allegedly took his Taser, applied it directly to Mr. Hernandez-Rojas' body, and electrocuted him. ( Id. ¶ 113-114.) Plaintiffs allege that Agent 7663's actions contributed to Hernandez-Rojas's heart attack and ultimate death. ( Id. ¶ 106-117.)
There are eleven causes of action remaining in the TAC Plaintiffs filed on March 23, 2012. [Doc. 53.] On September 18, 2012, Defendants filed their first amended answer to the TAC. [Doc. 109.] Agent 7663 was deposed on December 6, 2012, where he elected to invoke his Fifth Amendment rights and declined to answer particular questions. ( See Ex. 10, Agent 7663 Depo.) Plaintiffs now move to strike Agent 7663's answer, obtain a default against him, and find liability as to both Agent 7663 and the United States.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 37(b) permits a Court to impose sanctions upon a party for failing to obey a discovery order. FED. R. CIV. P. 37(b). Rule 37(b)(2) states that if a party "fails to obey an order to provide or permit discovery, " the court in which the action is pending may "make such orders in regard to the failure" of the disobedient party, including an order deeming certain facts as established, refusing to permit the support or opposition of designated claims, striking pleadings, dismissing the action, rendering a default judgment, or holding the disobedient party in contempt. FED. R. CIV. P. 37(b)(2).
Rule 26 provides that the scope of discovery includes non-privileged matter that is relevant to a party's claim or defense. FED. R. CIV. P. 26(b). "What is privileged is defined by the Federal Rules of Evidence; these rules include the privilege against self-incrimination." Campbell v. Gerrans, 592 F.2d 1054, 1057 (9th Cir. 1979). The Fifth Amendment privilege is intended to be a shield against compulsory self-incrimination. U.S. v. Rylander, 460 U.S. 752, 758 (1983). Although some courts have imposed sanctions against parties who assert the privilege in a civil suit, "[t]he error that has been made in some of the cases in this line of authority is to view all pleading of the Fifth Amendment in the discovery stage as improper." Campbell, 592 F.2d at 1057; see also Lyons v. Johnson, 415 F.2d 540 (9th Cir. 1969). District courts have discretion in responding to a party's invocation of the Fifth Amendment privilege against self-incrimination. SEC v. Colello, 139 F.3d 674, 677 (9th Cir. 1998).
Both parties concede that Agent 7663 validly invoked his Fifth Amendment privilege against self-incrimination during his deposition. ( See Pls.' Mot. 21:15-19; Defs.' Opp'n 7:6-8, n. 2.) Plaintiffs, however, argue that Agent 7663's strategic use of the privilege has precluded them from obtaining critical discovery. Thus, Plaintiffs request that the Court strike Agent 7663's answer, enter default judgment, and make a finding of liability. (Pls.' Mot. 1:13-18.) The Court declines to do so for the reasons stated below.
A. A Court Order is a Prerequisite to Imposing Rule 37(b) Sanctions
Rule 37(b) clearly states that a court order must be in effect before sanctions may be imposed. Contreraz v. Salazar, No. 11cv265, 2012 WL 528240, at * 3 (S.D. Cal. Feb. 17, 2012) (citing Salahuddin v. Harris, 782 F.2d 1127, 1131 (2d Cir. 1986); Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 994 (8th Cir. 1975); see also United States v. One Parcel of Real Prop., 780 F.Supp. 715, 722 (D. Or. 1991) (declining to grant sanctions under Rule 37 in the absence of a pervious court order, especially where it was unclear whether the party still would have refused to answer if an order compelling discovery had been issued). Thus, as Defendants argue, "[t]he violation of a discovery order is an absolute prerequisite for Rule 37 sanctions." (Defs.' Opp'n 8:12-22); see Uniqard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992).
Plaintiffs rely on a Massachusetts District Court case for the proposition that where a party validly invokes his privilege against self-incrimination, Courts may employ Rule 37 sanctions even where the party has not disobeyed a court order compelling discovery. (Pls.' Mot. 11:13-19) (citing Stop & Shop Companies, Inc. v. Interstate Cigar Co., Inc., 110 F.R.D. 105, 108 (D. Mass. 1989)). Plaintiffs overstate the scope of the court's decision. Although the facts in Stop & Shop are similar in that Defendants appeared at their depositions and validly invoked their privilege against self-incrimination, the court dealt with a motion to dismiss a counterclaim, rather than a motion to strike an answer or to enter default judgment. Stop & Shop, 110 F.R.D. at 108. The court noted that courts have "the power to dismiss the Complaint despite the fact that the [party] has not disobeyed an order compelling discovery." Id. In other words, Rule 37(b) is not the only rule permitting dismissal of a complaint. For example, the existence of, and subsequent violation of, an order compelling discovery is not required for a court to rule on a motion to dismiss brought under Rule 12(b)(6). However, the court explicitly states that ...