United States District Court, E.D. California
SETH ARELLANO, a minor, by and through his Guardian Ad Litem, BERTHA HERNANDEZ, Plaintiffs,
CITY OF HANFORD, and DOES 1 through 10, Defendants.
August 24, 2016
ORDER GRANTING IN PART DEFENDANT’S MOTION FOR
ADDITIONAL SANCTIONS ORDER TO SHOW (DOC. 28)
M. SNYDER, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant City of
Hanford’s motion to compel additional sanctions against
Plaintiffs for failure to comply with the Court’s April
20, 2016 order. Doc. 29. Defendant filed the motion on June
9, 2016, with a hearing date set for July 20, 2016. Doc. 28.
Plaintiffs did not oppose the motion.
Court found this matter suitable for consideration without
oral argument, vacated the hearing, and took this matter
under submission. Doc. 32.
order dated April 20, 2016, the Court directed Plaintiffs to
serve complete Rule 26(a)(1) initial disclosures no later than
May 20, 2016, and to pay a $400 sanction to Defendant for
failure to timely provide the initial disclosures. Doc. 27.
Nearly two months later, Defendant filed this motion alleging
that Plaintiffs have not complied with the Court’s
order. In the attached declaration, Defendant’s
counsel, Mariou U. Zamora, asserts that to date, Plaintiffs
have not provided the initial disclosures. Consequently,
Defendant requests the Court dismiss this case and impose
monetary sanctions under Rule 37(b)(2)(C) in the amount of
$800.00 for counsel’s time expended in bringing this
motion and attending the hearing that was scheduled.
regard to terminating sanctions, the Ninth Circuit has:
constructed a five-part test, with three subparts to the
fifth part, to determine whether a case-dispositive sanction
under Rule 37(b)(2) is just: (1) the public’s interest
in expeditious resolution of litigation; (2) the
court’s need to manage its dockets; (3) the risk of
prejudice to the party seeking sanctions; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions. The sub-parts of
the fifth factor are whether the court has considered lesser
sanctions, whether it tried them, and whether it warned the
recalcitrant party about the possibility of case-dispositive
Connecticut Gen. Life Ins. Co. v. New Images of Beverly
Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (internal
quotations and footnotes omitted). Importantly, “[t]his
test is not mechanical. It provides the district court with a
way to think about what to do, not a set of conditions
precedent for sanctions or a script that the district court
must follow[.]” Id.
the circumstances, the first and second factors weigh in
favor of Defendant, and the third, fourth and fifth factors
weigh in favor of Plaintiffs. Dispositive here is the fifth
factor. Because the Court did not warn Plaintiffs about the
possibility of dismissal of this case and because a less
drastic alternative remains-namely an opportunity to show
cause-it is hard pressed to grant Defendant’s request.
The Court therefore declines to impose terminating sanctions.