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Alexis v. Rogers

United States District Court, S.D. California

May 12, 2017

LAURA ALEXIS, Plaintiff,
v.
JAMES B. ROGERS, et al., Defendants.

          REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF [ECF NO. 99]

          Hon. Barbara L. Major United States Magistrate Judge.

         On April 19, 2017, Defendants filed a “Renewed Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Plaintiff.” ECF No. 99 (“Mot.”). In their motion, Defendants seek a variety of sanctions, including terminating sanctions, for a number of alleged discovery violations. Plaintiff did not oppose the motion. See Docket.

         This Report and Recommendation is submitted to United States District Judge Cathy A. Bencivengo pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, this Court RECOMMENDS that Defendants' Motion for Terminating Sanctions Against Plaintiff be GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND

         On March 27, 2015, Plaintiff filed a complaint alleging, inter alia, intentional and negligent infliction of emotional distress, sexual harassment, and retaliatory, wrongful termination. ECF No. 1 at 30-32, 34-35. Plaintiff seeks general damages, lost earnings, punitive and exemplary damages, pre-judgment interest, costs of suit, attorneys' fees, and an injunction “restraining Defendants from continuing to engage in unlawful and unfair business practices.” Id. at 35-36. Plaintiff alleges that she worked for Defendants from approximately January 2012 until she was unlawfully terminated in August 2013. Id. at 6-7, 15. Plaintiff claims that Defendant Rogers made “improper, explicit, and unwanted sexual advances for over the course of over a year, ” and that she was fired when she refused the advances. Id. at 2, 11-15. Plaintiff further alleges that after Defendants learned that she intended to file a sexual harassment suit against Mr. Rogers, they filed a retaliatory complaint against her in the Cook Islands on January 14, 2015, alleging extortion, and seeking $650, 000 in damages. Id. at 16-17. Plaintiff also contends that on February 8, 2015, she was physically injured in connection with the service of process of the Cook Islands complaint when Terri Safino, “at the direction or request of the process server hired by Defendants, ” tried to physically drag Plaintiff from her house to the process server. Id. at 18.

         On September 2, 2016, the Court issued a “Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings.” ECF No. 46. On September 21, 2016, Plaintiff moved to compel, inter alia, Defendant Rogers' deposition in Los Angeles, California. ECF No. 49. On October 21, 2016, the Court denied the motion and ordered the deposition to occur “in Singapore on November 9, 2016.” ECF No. 57 at 4-5. Plaintiff noticed the deposition, but subsequently cancelled it a few days before the scheduled date while defense counsel was traveling to Singapore. ECF No. 61-1, Declaration of Olaf J. Muller at 3-4; Exh. 4. On November 11 and 12, 2016, Defendants filed three separate motions seeking various sanctions against Plaintiff and her counsel. ECF Nos. 59-61. On December 16, 2012, the Court issued an order (1) granting in part and denying in part Defendants' motion for monetary sanctions based on Plaintiff's and her counsel's willful violation of the October 21, 2016 Court order; (2) denying Defendants' motion for monetary sanctions based on Plaintiff's fraud on the court; and (3) granting in part and denying in part Defendants' motion for monetary and/or evidentiary sanctions based on Plaintiff's continuous withholding of critical documents. ECF No. 69. The Court ordered Plaintiff and her counsel to jointly and severally reimburse Defendants for defense counsel's flight and hotel expenses incurred in connection with Mr. Rogers' cancelled deposition in Singapore. Id. at 14-15, 20. Further, in light of Plaintiff's production of new emails and documents after her deposition, [1] the Court allowed Defendants to redepose Plaintiff “for no more than three hours, ” but limited the scope of the questioning to the emails and documents produced after Plaintiff's deposition. Id. at 19-20. On January 4, 2017, Plaintiff's counsel filed a declaration stating that pursuant to the Court's December 16, 2016 Order [ECF No. 69], she sent a check in the amount of $7, 598.82 to defense counsel as reimbursement for defense counsel's flight and hotel expenses. ECF No. 74, Declaration of Amber L. Eck at 2.

         On December 19, 2016, Plaintiff's counsel moved to withdraw from the case. ECF No. 70; ECF No. 70-1, Declaration of Amber L. Eck at 2 (declaring that “there has been an irreconcilable breakdown in the attorney-client relationship and ethical considerations require withdrawal.”). On December 27, 2016, Defendants filed a notice of non-opposition to the motion to withdraw. ECF No. 73. On January 6, 2017, District Judge Cathy A. Bencivengo granted Plaintiff's counsel's motion to withdraw and substituted Plaintiff “to act as her own counsel.” ECF No. 79 at 3. In the order, Judge Bencivengo emphasized that Plaintiff was “responsible for complying with all court rules and applicable laws, as well as all currently scheduled court deadlines and hearings, ” and cautioned that “[f]ailure to do so, and failure to comply with any order of this Court may result in sanctions or in the dismissal of this action.” Id. Judge Bencivengo further required Plaintiff “to keep the Court appraised of her current mailing address and telephone number at all times, ” and cautioned that “[f]ailure to do so will result in the dismissal of this action.” Id. at 3-4.

         On January 9, 2017, Plaintiff sent an email to defense counsel, Mr. Muller, stating, inter alia, that she “refuse[d] to answer any questions UNTIL [she] find[s] a new attorney.” Muller Decl., Exh. 8 at 41-42. Plaintiff also stated: “I did not sign a document, that I will self-represent myself.” Id. at 42.

         On January 20, 2017, Defendants filed an “Omnibus Discovery Motion and Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Plaintiff.” ECF No. 82. Defendants moved for terminating and lesser sanctions based on: 1) Plaintiff's refusal to comply with the Court's December 16, 2016 Order compelling Plaintiff to appear for three additional hours of deposition; 2) Plaintiff's refusal to comply with the Court's August 26, 2016 Joint Protective Order forbidding public disclosure of materials designated as confidential; and 3) Plaintiff's refusal to comply with the Court's January 6, 2017 Order keeping the Court apprised of her current mailing address and telephone number. Id. Plaintiff did not file an opposition to the motion. See Docket.

         On March 21, 2017, the Court issued an order granting in part and denying in part Defendants' omnibus discovery motion. ECF No. 95. Specifically, the Court ordered Plaintiff to do the following:

• “appear for her deposition in person at the location identified by Defendants” on or before April 14, 2017, the deposition not to exceed three hours;
• “submit to an independent mental examination [(“IME”)] by Dr. David Glaser M.D.” no later than April 14, 2017, “at a location in San Diego, California”;
• “update the Court's docket to reflect her correct mailing address, if the current one is incorrect” by March 30, 2017;
• “provide supplemental responses to Interrogatory Nos. 6 and 19” on or before April 4, 2017;
• “produce to Defendants the documents she agreed to produce in her responses to RFPs 333, 337-340, 344-349, and 350-352” on or before April 4, 2017;
• “produce to Defendants the documents described on pages 17-18 of this order[2]” on or before April 4, 2017; and
• “provide the supplemental response to the RFPs identified on page 18 of this order” on or before April 4, 2017.

Id at 3, 7, 12-13, 20. The Court refused to impose terminating sanctions, but “warned” Plaintiff that her “failure to comply with any of this Court's Orders or the Federal Rules of Civil Procedure may result in the imposition of sanctions including monetary sanctions, evidentiary sanctions and/or the dismissal or default of your case.” Id. at 3-4, 21 (emphasis in original).

         On March 27, 2017, Defendants timely noticed Plaintiff's continued deposition and IME by emailing and mailing appropriate notices to Plaintiff. ECF No. 99-1, Declaration of Olaf J. Muller (“Muller Decl.”) at 2, Exh. 1. Defendants scheduled Plaintiff's IME by Dr. Glaser for April 7, 2017 at 9:00 a.m. and Plaintiff's continued deposition for April 10, 2017 at 1:00 p.m. in downtown San Diego. Id. Plaintiff did not object to either notice and did not appear for either the IME or the continued deposition. Muller Decl. at 2-4. Plaintiff did not respond to Mr. Muller's emails, including the emails Mr. Muller sent during Plaintiff's scheduled IME and deposition reminding Plaintiff that the IME/deposition were ongoing, that she was late, and that both Dr. Glaser and Mr. Muller would wait additional time at the noticed locations for Plaintiff to appear. Id. at 3, Exh. 2. Further, Plaintiff has not produced any documents or provided the supplemental discovery responses ordered by the Court in its March 21, 2017 order. Muller Decl. at 3. Plaintiff also “ignored” all of defense counsel's efforts to informally resolve the dispute, including “repeated efforts to schedule a joint call” with the Court “to discuss the situation and various discovery disputes in this case, as well as the case in general.” Id. at 6-7.

         In the instant motion, Defendants assert that Plaintiff has violated all of the orders issued by the Court on March 21, 2017, as well as the Court's December 16, 2016 Order compelling Plaintiff to appear for three hours of deposition, and seek various sanctions, including terminating sanctions.[3] See Mot.; see also Muller Decl.

         APPLICABLE LAW

         Rule 37 of the Federal Rules of Civil Procedure empowers this Court to issue sanctions against a party for failing to make disclosures or cooperate in discovery. If a party “fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders.” Fed.R.Civ.P. 37(b)(2)(A). If a party “fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless, ” and “[i]n addition to or instead of this sanction, ” the court “may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Fed.R.Civ.P. 37(c)(1)(C). A court may also order sanctions if “a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.” Fed.R.Civ.P. 37(d)(1)(A)(ii). Finally, a court may impose sanctions if a party “fails, after being served with proper notice, to appear for . . . ...


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