United States District Court, N.D. California
ORDER OF DISMISSAL (DKT. NOS. 30, 33, 36)
CLAUDIA WILKEN, UNITED STATES DISTRICT JUDGE.
Defendants Sheriff Vicki Hennessy, Deputy M. Folger, Deputy
B. Goodman, Sr., Deputy Lewis, and Lt. Haskell have filed a
motion to dismiss or, in the alternative, to compel the
deposition of Plaintiff Amber Ahyawna Smith and extend the
deadlines for fact discovery and for the filing of a
dispositive motion. Plaintiff has not opposed the motion or
complied with this Court's discovery and case management
orders. For the following reasons, the Court grants
Defendants' motion and dismisses this case with prejudice
for failure to prosecute.
filed this pro se civil rights action under 42 U.S.C. §
1983 against the City and County of San Francisco, the City
and County of San Francisco Sheriff's Department, and the
Individual Defendants. The Court ordered issuance of summons
and Deputy United States Marshals served Defendants. The
parties appeared for an initial case management conference on
November 7, 2017, and the Court set a case management
schedule, including a deadline of March 2, 2018 for the
completion of fact discovery.
February 21, 2018, Defendants moved to dismiss, contending
that, after the case management conference, Plaintiff failed
to return their phone calls and emails or to respond in any
way to their repeated attempts to conduct discovery in this
case. They asserted that she failed to appear at a properly
noticed deposition or to meet and confer regarding deposition
scheduling, to sign a release for Defendants to obtain her
medical records, to respond to written discovery requests or
to provide responsive documents.
March 16, 2018, the Court granted Defendants' motion to
compel, stayed consideration of Defendants' motion to
dismiss and ordered Plaintiff to comply with her discovery
obligations no later than April 2, 2018. The Court ordered
Plaintiff to file a joint status report or separate
declaration regarding her compliance with the Court's
order no later than April 3, 2018. The Court warned Plaintiff
that if she did not comply fully with the Court's order,
her case would be dismissed with prejudice for failure to
Court may order sanctions if a party fails, after being
served with proper notice, to appear for her deposition.
Fed.R.Civ.P. 37(d)(1)(A)(i). Sanctions may include any
further just orders, including dismissal of the action in
whole or in part. Fed.R.Civ.P. 37(b)(2)(A), (d)(3). This
Court applies five factors in considering whether dismissal
is appropriate as a sanction: (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. Wanderer v.
Johnston, 910 F.2d 652, 956 (9th Cir. 1990) (quoting
Malone v. United States Postal Service, 833 F.2d
128, 130 (9th Cir. 1987).
order to warrant imposition of terminating sanctions, the
Court must find that the failure to comply was “due to
willfulness, bad faith, or fault of the party.”
Wyle v. R.J. Reynolds Indus., 709 F.2d 585, 589 (9th
Cir. 1983). A finding of “‘disobedient conduct
not shown to be outside the control of the
litigant'” meets this standard. Henry v. Gill
Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993) (quoting
Fjelstad v. American Honda Motor Co., Inc., 762 F.2d
1334, 1341 (9th Cir. 1985)).
has not opposed Defendants' motion to dismiss and did not
file a status report or declaration in compliance with this
Court's March 16, 2018 order. Mail sent to
Plaintiff's address of record has not been returned to
the Court as undeliverable, so there is no reason to believe
she did not receive the order. On April 3, 2018, Defendants
filed a declaration that Plaintiff has not contacted
Defendants to comply with the Court's order, and that the
last communication Defendants had with Plaintiff was at the
November 7, 2017 initial case management conference. The
deadline for the close of fact discovery has passed and
Plaintiff has not participated in discovery or appeared for
her deposition. It appears that she has abandoned this
interest in expeditious resolution of this litigation, the
Court's need to manage its dockets, and the risk of
prejudice to Defendants all weigh in favor of granting the
motion to dismiss. With regard to the public policy favoring
disposition of cases on their merits and the availability of
less drastic sanctions, the Court extended the fact discovery
cut-off and issued the prior order in an attempt to give
Plaintiff an additional opportunity to comply with her
obligations and make a disposition on the merits possible.
The Court also explicitly informed Plaintiff of the
consequences of failing to comply. Plaintiff has not complied
with the Court's March 16, 2018 order or responded to it
in any way. Nor has she complied with the Court's
November 7, 2017 minute order and case management order.
Accordingly, the Court will dismiss this case with prejudice
for failure to prosecute.
foregoing reasons, the Court grants Defendants' motion to
dismiss this case with prejudice for failure to prosecute.
The Clerk shall enter judgment and close ...