United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR EXTENSION
OF TIME FOR EXPERT DISCOVERY, TO DESIGNATE EXPERTS AND DEPOSE
DEFENDANT'S EXPERTS (ECF NO. 107) ORDER DENYING
DEFENDANT'S MOTION TO DISMISS (ECF NO. 112)
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE.
Cornell Brown is a state prisoner proceeding in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
§ 1983. The parties have consented to magistrate judge
jurisdiction pursuant to 28 U.S.C. § 636(c). (ECF Nos.
5, 83.) This action proceeds against Defendant Harris on
Plaintiff's claim of excessive force arising out of
events on April 12, 2012. A jury trial is currently set for
May 30, 2017.
before the Court are: (1) Plaintiff's motion to extend
time for discovery, to designate experts, and to depose
defendant's experts, filed January 25, 2017 (ECF No.
107); and (2) Defendant's motion to dismiss, filed
February 6, 2017 (ECF No. 112).
telephonic hearing was held on March 21, 2017 regarding these
motions and other pretrial matters. Jeremy Lessem and Jamal
Tooson of Lessem, Newstate & Tooson LLP, counsel for
Plaintiff, appeared by telephone, and Joanna Hood, of the
Office of the Attorney General, counsel for Defendant,
appeared in person at that hearing.
Relevant Procedural Background
January 18, 2017, the Court held a telephonic trial
confirmation hearing in this case. Jamal Tooson, counsel for
Plaintiff, and Joanna Hood, counsel for Defendant, attended
the hearing. Following the hearing, on good cause shown, the
Court continued the jury trial date to May 30, 2017, at 8:30
a.m. in Courtroom 8. The Court also allowed Plaintiff to file
a motion regarding the reopening of discovery for limited
purposes and the late designation of expert witnesses. (ECF
filed his motion to extend time for discovery, designate
experts, and depose Defendant's experts on January 25,
2017. (ECF No. 107.) Defendant filed an opposition on
February I, 2017. (ECF No. 111.) A reply was permitted, (ECF
No. 105, p. 3), but none was filed by the deadline.
February 6, 2017, Defendant filed a request for dismissal
pursuant to Federal Rule of Civil Procedure 41(b) and Local
Rule 110. (ECF No. 112.) Plaintiff filed an opposition to
that motion on February 9, 2017, (ECF No. 113), and Defendant
filed a reply to Plaintiff's opposition on February 16,
2017, (ECF No. 114).
oral argument on these motions at the hearing as noted above,
the motions are now deemed submitted. Local Rule 230(1).
Defendant's Motion to Dismiss
basis and arguments on this motion are known to the parties
and were discussed at the hearing. In sum, Defendant seeks
dismissal based on Plaintiff's repeated failure to comply
with orders requiring a completed pretrial statement, and its
prejudicial effect on Defendant's and the Court's
preparations for trial.
courts have the inherent power to control their dockets and
“[i]n the exercise of that power they may impose
sanctions including, where appropriate, . . .
dismissal.” Thompson v. Housing Auth., 782
F.2d 829, 831 (9th Cir. 1986). In determining whether to
dismiss an action, the Court must consider several factors:
(1) the public's interest in expeditious resolution of
litigation; (2) the Court's need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions. Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey
v. King, 856 F.2d 1439 (9th Cir. 1988). “Because
dismissal is a harsh penalty, it should be imposed as a
sanction only in extreme circumstances.” Oliva v.
Sullivan, 958 F.2d 272, 273 (9th Cir. 1992).
reasons discussed in open court, Defendant's motion to
dismiss is denied. Although the Court admonishes
Plaintiff's counsel for the repeated non-compliance with
its orders and continuing deficiencies in the pretrial
statement, the Court finds no bad faith by Plaintiff or his
counsel here. The Court instead finds that due to the timing
of counsel's appearance and the orders here, there may
have been confusion, and counsel has attempted compliance in
good faith. Importantly, the interests of justice and public
policy strongly favor a disposition on the merits in this
matter, and the risk of any prejudice to Defendant will be
greatly reduced here by a modification of the scheduling
orders in this case, discussed further below.
Defendant's alternative motion to exclude certain
evidence as a sanction here, the Court finds it appropriate
under the circumstances to preclude Plaintiff from seeking
the attendance of incarcerated witnesses, other than
Plaintiff himself, to testify at trial in this matter. As
discussed at the hearing, the December 6, 2016 deadline for a
motion for the attendance of incarcerated witnesses was set
forth in the Court's August 31, 2016 scheduling order,
(ECF No. 96), and was thus well-known to Plaintiff for
several months. No motion was filed, no extension of that
deadline was sought, and no proposed witnesses have ...