United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO STRIKE THE ANSWER AND
ENTER DEFAULT
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
United
Financial Casualty Company seeks declaratory relief against
the defendants, asserting it does not have a duty to
indemnify defendants HS Brothers Express, Inc.; Harjit Singh;
or Harpreet Singh in an action filed in state court related
to an accident. (See Doc. 1) HS Brothers has failed
to appear with through counsel, despite the information
provided to Harjit Singh-who identifies himself as the
“sole owner”- and has failed to comply with the
Court's orders. As set forth below, the Court recommends
the Answer filed by Harjit Singh to the extent it was filed
on behalf of HS Brothers Express, be
STRICKEN and default be entered against HS
Brothers Express.
I.
Relevant Background
Plaintiff
initiated this action by filing a complaint for declaratory
relief on May 23, 2019. (Doc. 1) Defendant Gulbag Singh Ratte
filed an answer to the complaint on July 10, 2019. (Doc. 11)
Defendant Harjit Singh filed an answer on July 29, 2019,
indicating that he was answering as the “sole owner of
H S Brothers Express.” (Doc. 14)
On
August 19, 2019, the Court held a scheduling conference with
the parties. (Doc. 25) Defendant Harjit Singh appeared in pro
per. (See id. at 25) At that time, the Court
explained an entity such as HS Brothers Express must be
represented by counsel. The same date, the Court issued an
order to HS Brothers Express to appear in the action through
counsel. (Doc. 24) The Court ordered HS Brothers Express to
secure the services of an attorney within thirty days of the
date of service, and to respond to the complaint within sixty
days of the date of service. (Id. at 1-2) Further,
HS Brothers Express was “ advised that its failure to
comply with this order will result in the recommendation that
default be entered against it.” (Id. at 2,
emphasis omitted) HS Brothers Express failed to comply with
or otherwise respond to the Court's order.
On
October 29, 2019, the Court issued an order to HS Brothers
Express to show cause in writing why terminating sanctions
should not be imposed and default not be entered for failure
to comply with the Court's order. (Doc. 27) In the
alternative, HS Brothers Express was ordered to file a notice
of appearance and a pleading responsive to the complaint
within twenty-one days. (Id. at 2) Again, HS
Brothers Express was warned that failure to comply with the
Court's order would “result in a recommendation
that it be found to be in default.” (Id.) To
date, HS Brothers Express has not responded to the
Court's orders.
II.
Failure Obey the Court's Orders
The
Local Rules, corresponding with Fed.R.Civ.P. 11, provide:
“Failure of counsel or of a party to comply with . . .
any order of the Court may be grounds for the imposition by
the Court of any and all sanctions . . . within the inherent
power of the Court.” LR 110. “District courts
have inherent power to control their dockets, ” and in
exercising that power, a court may impose sanctions including
dismissal of an action. Thompson v. Housing Authority of
Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court
may impose terminating sanctions for a party's failure to
obey a court order. See, e.g. Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)
(terminating sanctions for failure to comply with an order);
Malone v. U.S. Postal Service, 833 F.2d 128, 130
(9th Cir. 1987) (same).
Dispositive
sanctions may be warranted where “discovery violations
threaten to interfere with the rightful decision of the
case.” Conn. Gen. Life Ins. Co. v. New Images of
Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007).
“A terminating sanction, whether default judgment
against a defendant or dismissal of a plaintiff's action,
is very severe, ” and “[o]nly willfulness, bad
faith, and fault justify terminating sanctions.”
Id. at 1096; see also Computer Task Group, Inc.
v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (stating
that where “the drastic sanctions of dismissal or
default are imposed, . . . the range of discretion is
narrowed and the losing party's noncompliance must be due
to willfulness, fault, or bad faith”).
III.
Discussion and Analysis
The
Ninth Circuit has identified five factors that a court must
consider when issuing terminating sanctions: “(1) the
public's interest in the expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the [party seeking terminating
sanctions]; (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. 186); Toth v. Trans World
Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988).
A.
Public interest and the Court's docket
In the
case at hand, the public's interest in expeditiously
resolving this litigation and the Court's interest in
managing the docket weigh in favor of dismissal. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.
1999) (“The public's interest in expeditious
resolution of litigation always favors dismissal”);
Ferdik, 963 F.2d at 1261 (recognizing that district
courts have inherent interest in managing their dockets
without being subject to noncompliant litigants). HS Brothers
Express has been advised several times by the Court that
counsel is required to represent the entity, and was ordered
to appear with counsel. (See Docs. 24, 25, 27) This
Court cannot, and will not hold, this case in abeyance for
the defendant's failure to comply with the Court's
order and to defend in a timely manner. See Morris v.
Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.
1991) (observing parties are obligated “to move
toward… disposition at a reasonable pace, and to
refrain from dilatory and evasive tactics”).
Accordingly, these factors weigh in favor of terminating
sanctions.
B.
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