United States District Court, E.D. California
ALLEN C. HASSAN, Plaintiff,
CORELOGIC CREDCO, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN, Magistrate Judge.
Presently pending before the court are various motions to compel discovery filed by defendants Experian Information Solutions, Inc. ("Experian") and Corelogic Credco, LLC ("Corelogic"). (ECF Nos. 73, 74, 75, 76, 77.) Additionally, the court previously directed plaintiff Allen Hassan to show cause why the action should not be dismissed based on plaintiff's purported discovery conduct and failure to prosecute the case. (ECF No. 78.) The court specially set a hearing on the pending motions to compel and the order to show cause for March 5, 2015, and plaintiff was ordered to personally appear at the hearing. (Id.)
Plaintiff failed to file any response to the motions to compel or the court's order to show cause. At the March 5, 2015 hearing, attorney Heather Herd appeared in person on behalf of Corelogic, Ann Rossum appeared telephonically on behalf of Experian, and Monica Katz-Lapides appeared telephonically on behalf of non-moving defendant Trans Union, LLC ("Trans Union"). Significantly, plaintiff failed to appear at the hearing.
For the reasons discussed below, the court now recommends that the action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) based on plaintiff's discovery conduct, failure to prosecute the case, and failure to comply with the Local Rules and court orders.
According to the operative first amended complaint, plaintiff, a licensed attorney, doctor, and veterinarian, alleges that the United States Office of Foreign Assets Control ("OFAC") improperly put plaintiff on a designated terrorist list based on his Palestinian descent. Plaintiff asserts that several credit or consumer reporting agencies, including defendants Corelogic, Equifax, Experian, and Trans Union, then reported plaintiff's alleged listing as a designated terrorist on credit reports issued to lenders, banks, and other entities, resulting in plaintiff being denied credit, losing properties, losing income, being driven into bankruptcy, and losing his reputation in the medical and legal communities. Plaintiff contends that the credit agencies failed to follow reasonable procedures and conduct proper investigations to ensure the accuracy of the information in their credit reports, failed to delete inaccurate information from their credit reports, and relied on sources known to be unreliable. The first amended complaint asserts claims for violations of the federal Fair Credit Reporting Act, as well as state statutory and common law tort claims, against defendants Corelogic, Equifax, Experian, and Trans Union. (See generally ECF No. 38.) Plaintiff previously also named OFAC, Adam Szubin (as director of OFAC), and Eric Holder (as Attorney General of the United States) as defendants, but they were dismissed from the case with prejudice on February 10, 2014. (ECF No. 28.)
On November 20, 2014, after all remaining defendants answered the first amended complaint (ECF Nos. 43, 44, 46, 59), the assigned district judge issued a pretrial scheduling order requiring initial disclosures to be completed within fourteen (14) days, i.e., by December 4, 2014. (ECF No. 67.) The pretrial scheduling order also requires discovery to be completed by March 27, 2015. (Id.) The order explains that the word "completed" means that "all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been obeyed." (Id.)
On February 12, 2015, Experian filed a motion to compel plaintiff's responses to Experian's interrogatories and requests for production of documents. (ECF No. 73.) The interrogatories and requests for production of documents were served on December 2, 2014, but to date, no written responses or responsive documents have been provided. According to Experian, plaintiff also failed to respond to Experian's counsel's attempts to meet and confer via e-mail and letter concerning the outstanding discovery responses. (See ECF No. 73-2.) In light of plaintiff's complete failure to respond to Experian's discovery requests, and pursuant to Local Rule 251(e), the motion was noticed for hearing on February 26, 2015 (on 14 days' notice), requiring any response to the motion to be filed not later than seven (7) days before the hearing date, i.e., by February 19, 2015. See L.R. 251(e). Plaintiff failed to respond to Experian's motion by that deadline.
Furthermore, on February 13, 2015, Corelogic filed motions to compel plaintiff's responses to its requests for production of documents and two sets of interrogatories, as well as a motion to compel plaintiff to provide initial disclosures in accordance with the district judge's scheduling order. (ECF Nos. 74, 75, 76, 77.) Corelogic also seeks preclusion sanctions. (ECF No. 77.) Those motions were initially set for hearing on March 26, 2015. According to Corelogic, its requests for production of documents and first set of interrogatories were served on December 1, 2014, and the second set of interrogatories were served on December 5, 2014, but to date, no written responses or responsive documents have been provided. Furthermore, Corelogic asserts that plaintiff failed to substantively respond to Corelogic's efforts to meet and confer by letter and telephone. (See ECF Nos. 74-2, 75-2, 76-2, 77-2.)
In light of plaintiff's discovery conduct thus far, plaintiff's failure to respond to Experian's motion in accordance with the Local Rules, and the imminently approaching March 27, 2015 fact discovery completion deadline, the court on February 23, 2015 continued the February 26, 2015 hearing on Experian's motion, and advanced the March 26, 2015 hearing on Corelogic's motions, to March 5, 2015. (ECF No. 78.) Plaintiff was directed to file a response to the pending motions to compel no later than March 2, 2015, at 5:00 p.m. (Id.) Plaintiff was further ordered to show cause, in writing, why the action should not be dismissed based on plaintiff's discovery conduct and failure to prosecute the case, with plaintiff's response to the order to show cause due no later than March 2, 2015, at 5:00 p.m. (Id.) Finally, plaintiff was ordered to appear in person at the March 5, 2015 hearing. (Id.) The order specifically cautioned plaintiff that "[f]ailure to strictly comply with the terms and deadlines of this order may result in the imposition of sanctions, including a recommendation of dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b)." (Id.)
By issuing the February 23, 2015 order and order to show cause, and setting the March 5, 2015 hearing, the court hoped to: (a) provide plaintiff with an opportunity to explain his conduct thus far in person; (b) impress upon plaintiff the importance of complying with court procedures and deadlines; and (c) attempt to salvage discovery in this matter and to avoid the harsh sanction of dismissal.
However, as noted above, plaintiff ultimately spurned the court's efforts by failing to respond to the pending motions to compel as required by the court's order, failing to respond to the court's order to show cause, and failing to appear at the March 5, 2015 hearing. Plaintiff did not request an extension of time to comply with the court's orders, even advise the ...