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Weldon v. Dyer

United States District Court, E.D. California

April 9, 2015

PAUL WELDON, Plaintiff,
v.
JERRY DYER, et al., Defendants.

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DISMISSAL SANCTIONS ISSUE AGAINST PLAINTIFF RE OUSTANDING ORDERS TO SHOW CAUSE OBJECTIONS DUE WITHIN TWENTY-ONE (21) DAYS

STANLEY A. BOONE, Magistrate Judge.

In this action, there are two outstanding orders issued toward Plaintiff to show cause why sanctions should not be issued for his failure to comply with the Local Rules concerning the participation in the preparation of a Joint Statement re Discovery Disagreement.

For the reasons set forth below, the Court recommends that dismissal sanctions issue against Plaintiff as a result of his repeated violations of the Federal Rules of Civil Procedure, the Local Rules, and this Court's orders.

I.

BACKGROUND

The operative complaint in this matter is the Fourth Amended Complaint filed on September 2, 2014. (ECF No. 77.) Plaintiff's claims arise from an incident on April 18, 2011. Plaintiff alleges that his rights were violated when he was pulled over by Defendant Conlee. Plaintiff alleges that Defendant Conlee was "impersonating" a Fresno Police Officer because he never took a valid oath of office. Plaintiff also asserts claims against Defendants Econo Towing Company, Marty Kodman, Robert Kodman, and Beryle Dodson for towing Plaintiff's car, allegedly in violation of the Fourteenth Amendment.

As recounted below, Plaintiff has a history in this action of repeated violations of the Federal Rules, Local Rules, and court orders and repeated instances of vexatious conduct and unreasonable refusal to cooperate with the opposing parties which has caused undue waste of time and resources both on the part of the Court as well as on the part of Defendants.

On June 4, 2014, the Court held a hearing on a motion to dismiss filed by Defendant Conlee. (ECF No. 52.) Plaintiff failed to appear without notice. The Court issued an order to show cause why sanctions should not issue for Plaintiff's failure to appear. (ECF No. 55.) The Court did not accept Plaintiff's excuse that he was unaware that his attendance was required and admonished Plaintiff to comply with the Local Rules. (ECF No. 72.) However, monetary sanctions were not issued because Defendant failed to provide evidence of the costs and fees associated with their appearance at the motion hearing.

On October 9, 2014, Plaintiff filed a motion for a protective order regarding a videotaped deposition of Plaintiff noticed by Defendants. (ECF No. 83.) The Court found Plaintiff's motion and argument to be frivolous and denied it on October 10, 2014 without oral argument or further briefing. (ECF No. 84.) Plaintiff raised the frivolous argument that he should not be subjected to a deposition because he found it to be inconvenient and harassing. Plaintiff also raised the frivolous argument that a deposition of Plaintiff would serve no purpose, despite the fact that Plaintiff is quite clearly a percipient witness of the events alleged in his complaint. Plaintiff was expressly told that "Plaintiff must abide by the same rules and procedures that Defendants must abide by according to the Federal Rules of Civil Procedure, including those rules and procedures governing depositions and other discovery requests." (Order Denying Mot. for Protective Order 2:3-5.)

On January 20, 2015, Defendant Conlee filed a motion to conduct a mental examination of Plaintiff pursuant to Federal Rule of Civil Procedure 35. (ECF No. 88.) The motion was initially scheduled to be heard on March 11, 2015, but later continued to March 25, 2015. (ECF No. 104.) Plaintiff filed a motion for protective order regarding a mental examination on February 17, 2015. (ECF No. 95.)

On February 2, 2015, Defendant Conlee filed a motion to compel Plaintiff to provide responsive answers to certain questions asked during his deposition. (ECF No. 93.) Defendant's motion and the deposition transcript showed that Plaintiff behavior during the deposition was gallingly rude and uncooperative. Plaintiff arrived at his own deposition twenty minutes late. Plaintiff initially refused to submit to the deposition until Defendant's attorney, Ms. Camarena, satisfied Plaintiff's unwarranted demands that Ms. Camarena prove that she is qualified to administer oaths and was licensed to practice law. After Plaintiff was warned about a future motion to compel and further sanctions, Plaintiff allowed Ms. Camarena to ask questions. However, Plaintiff refused to answer many, clearly relevant, questions posed by Ms. Camarena claiming that they were not relevant. Gallingly, Plaintiff accused Ms. Camarena of "rape, a molest, and a torture" because of the questions asked of him during the deposition. Plaintiff behaved in this uncooperative, offensive, and legally untenable behavior despite the fact that the Court's October 10, 2014 order expressly rejected Plaintiff's claims that a deposition was unduly inconvenient and harassing and expressly ordered Plaintiff to comply with the Federal Rules, including those concerning depositions and the scope of discovery.

Defendant's motion to compel regarding the deposition was scheduled to be heard on March 11, 2015. Accordingly, a Joint Statement re Discovery Disagreement was to be filed on March 4, 2015 in accordance with Local Rule 251. On March 4, 2015, Defendant Conlee filed a Statement re Discovery Disagreement informing the Court that Plaintiff did not participate in drafting a Joint Statement. On March 6, 2015, the Court issued an order granting Defendant's motion to compel and ordered Plaintiff to show cause why sanctions should not issue for Plaintiff's refusal to participate in the preparation of a Joint Statement. (ECF No. 103.) The Court also ordered Plaintiff to cooperate with Defendant at a subsequent deposition and pay $715.00 in monetary sanctions for his behavior at the deposition. Plaintiff's written response to the order to show cause was filed on March 20, 2015. (ECF No. 120.)

A Joint Statement related to Defendant's January 20, 2015 motion for a mental examination was due on March 18, 2015. On March 18, 2015, Defendant Conlee once again filed a statement informing the Court that, for the second time in a month, Plaintiff did not participate in the preparation of a Joint Statement. On March 20, 2015, the Court granted Defendant's motion for a mental examination and ordered Plaintiff to show cause why sanctions should not be imposed for his second failure to participate in the preparation of a Joint Statement.

Plaintiff filed a response to the Court's March 20, 2015 order to show cause on April 3, 2015. (ECF No. 136.) Plaintiff argues that "Weldon did indeed comply" with the Joint Statement requirement by providing "Exhibit A" that was attached to Plaintiff's response to the March 6 order to show cause.

To date, Plaintiff has not complied with the Court's March 6, 2015 order granting Defendant's motion to compel Plaintiff's cooperation at his deposition. Plaintiff has not submitted to a further deposition and has not paid the $715.00 in monetary sanctions. Instead, on March 20, 2015 and March 24, 2015, Plaintiff filed a series of motions attempting to stay discovery, asking for reconsideration of the Court's order granting the motion to compel, and to stay enforcement of the $715.00 sanction. (ECF Nos. 117, 122, 124, 126.) The Court disregarded these motions because Plaintiff failed to comply with the Local Rules regarding the notice of these motions because Plaintiff attempted to schedule one motion to be heard the day after it was filed and three motions to be heard thirteen days after they were filed. (ECF Nos. 121, 130.) Local Rule 230 and 251 requires at least 28 days of notice for regular motions and 21 days of notice for discovery motions. Plaintiff refiled these motions on March 30, 2015 and April 2, 2015, but failed to include a memorandum of points and authorities with these motions. (ECF Nos. 132, 133, 135.)

II.

DISCUSSION

A. Plaintiff's March 20, 2015 Response to the Court's March 6, 2015 Order to Show Cause

On March 6, 2015, the Court ordered Plaintiff to show cause why sanctions should not issue for Plaintiff's failure to comply with Local Rule 251 and participate in the preparation of a Joint Statement re Discovery Disagreement concerning Defendant's motion to compel Plaintiff to provide responsive answers to questions posed during his deposition. Plaintiff raises several arguments in his response to the Court's March 6, 2015 Order to Show Cause. The Court rejects all of Plaintiff's arguments.

First, Plaintiff argues that he is not a legal professional and "was not aware of local rules and their import." (Answer to Order to Show Cause Why Further Sanctions Should Not Be Imposed for Failure to Comply with Local Rule 251 ("Pl.'s Resp. to OSC") 1:21-24.) This excuse is unconvincing for several reasons. The Court's July 9, 2013 Informational Order (ECF No. 18) expressly informed Plaintiff that:

In litigating this action, the parties must comply with the Federal Rules of Civil Procedure and the Local Rules of the United States District Court, Eastern District of California ("Local Rules").... Failure to comply with Local Rules, federal rules or a court order, including this order, will be grounds for dismissal, entry of default or other appropriate sanctions.

(Informational Order, at pg. 1:18-23 (emphasis in original).)

Furthermore, the Court's December 12, 2013 Scheduling Order (ECF No. ...


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