United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS GRANTING PLAINTIFF'S MOTION FOR SANCTIONS
BARBARA A. McAULIFFE, Magistrate Judge.
Before the Court is Plaintiff J&J Sports Production, Inc.'s ("Plaintiff") motion for terminating sanctions against Defendant Ruben Aranda Garcia ("Defendant") for failure to produce discovery and otherwise meaningfully participate in this case. (Doc. 40). Defendant did not file an opposition to the motion. The motion was referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On October 10, 2014, a hearing on the motion was held. Counsel Thomas Riley appeared by telephone on behalf of Plaintiff. Defendant, proceeding pro se, did not appear at the hearing. Having considered the moving papers, oral arguments, as well as the Court's file, Plaintiff's motion for terminating sanctions is GRANTED.
Plaintiff filed its Complaint on September 13, 2012. (Doc. 1). Defendant was personally served at his residence on November 25, 2012. (Doc. 7). On December 19, 2012, after the time for filing a response to the Complaint had elapsed, Plaintiff filed a Request for Entry of Default against Defendant. (Doc. 8). Default was entered by the Clerk of the Court on January 16, 2013 and on March 26, 2013, Plaintiff filed a Motion for Default Judgment against Defendant. (Docs. 9, 11). Defendant failed to file an opposition to the motion and the Court took the matter under submission and vacated the hearing scheduled for May 3, 2013.
On May 3, 2013, Defendant, who is proceeding without counsel, appeared in person at the hearing only to discover that the hearing had been vacated. On May 7, 2013, Defendant filed a letter with the Court stating that "he never showed the Mayweather v. Ortiz fight" at his establishment. (Doc. 16). The Court considered Defendant's letter an opposition to the Clerk's default and allowed this case to proceed. (Doc. 19). In its order setting aside default, the Court also Ordered Defendant to file an Answer to the Complaint on or before August 12, 2013. (Doc 19 at 8). No answer was filed.
The Court thereafter set a Mandatory Scheduling Conference for November 6, 2013. (Doc. 21). The Court informed Defendant that prior to the conference, he was required to prepare a joint scheduling report. Defendant failed to meet and confer with Plaintiff's counsel on proposed dates and on October 30, 2013, Plaintiff filed a Scheduling Report noting that the scheduling report was "unilateral" because efforts to secure Defendant's input were unavailing. (Doc. 22).
On November 6, 2013, Defendant appeared in person at the scheduling conference, but case management dates were not issued. Plaintiff requested an opportunity to discuss settlement with the Defendant prior to issuing dates, which the Court granted. (Doc. 23). The Court postponed the Scheduling Conference to permit the parties to attempt to resolve the case and reset the Scheduling Conference for November 26, 2013, in the event a settlement was not reached. In the written order re-setting the scheduling conference, the Court ordered Defendant to appear at the Scheduling Conference in person and again "admonished [Defendant] that he is required to file an answer to Plaintiff's Complaint prior to the [November 26, 2013] Scheduling Conference." (Doc. 32). No answer was filed.
On November 25, 2013, Plaintiff filed a Notice of Settlement and the Court vacated the scheduling conference and ordered the parties to file final dispositive documents. Shortly thereafter, Plaintiff withdrew his Notice of Settlement, and the Court reset the scheduling conference for February 20, 2014. Again, the Court Order Defendant to participate in the joint scheduling report and again he failed to do so.
The Court held the scheduling conference on February 20, 2014. Attorney Reynaldo Pulido made a special appearance for Defendant and indicated that, although he was not Defendant's attorney of record, he was assisting Defendant with settlement negotiations. (Doc. 31). The Court set another scheduling conference for March 12, 2014 and ordered Plaintiff to appear in person. (Doc. 32). Without prior notice, Defendant failed to appear at the hearing as ordered. (Doc. 33). The Court waited until 9:11 a.m., over ten minutes after the scheduling conference was to begin, and then dismissed Plaintiff's counsel, noting that Defendant had failed to appear. Due to Defendant's failure to appear at the scheduling conference, the Court did not issue case management dates.
On March 13, 2014, the Court issued an Order to Show Cause ("OSC") as to why default should not be entered against Defendant for his failure to appear at the scheduling conference. At the show cause hearing, Defendant appeared at with an interpreter and the OSC was discharged. (Doc. 38).
After resetting the initial scheduling conference six times over the course of fifteen months, a scheduling order was finally entered on April 2, 2014. (Doc. 39). According to the scheduling order, the initial disclosure deadline is May 1, 2014, the discovery completion deadline is August 29, 2014; pretrial motion deadline is October 31, 2014; and the pre-trial conference and bench trial before the district judge is scheduled for January 28, 2015, and March 24, 2015, respectively. Id.
Plaintiff indicates that as of the date of this order, Defendant has failed to serve his initial disclosures or participate in the discovery process in any other way. Plaintiff brings the motion for terminating sanctions arguing that default should be entered against Defendant for his repeated failure to: (1) follow Court orders, (2) file an answer; (3) participate in the meet and confer process, and (4) produce initial disclosures.
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. Although case-dispositive sanctions are usually reserved for repeated violations of court orders, even a single willful violation may suffice, depending on the circumstances. Valley Engineers Inc. v. Electric Eng. Co., 158 F.3d 1051, 1056 (9th Cir. 1998). An explicit finding of willfulness or bad faith is a prerequisite to ordering dismissal. All that is required to demonstrate willfulness or bad faith is "disobedient conduct not shown to be outside the control of the litigant." Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993). Once the ...