Opinion
CV 21-00934 PHX SMB (CDB)
03-22-2023
Maxima Guerrero Sanchez, et al., Plaintiffs, v. City of Phoenix, et al., Defendants.
HONORABLE SUSAN M. BRNOVICH JUDGE
REPORT AND RECOMMENDATION
Camille D. Bibles United Slates Magistrate Judge
I. Background
As of March 22, 2023, there are 15 remaining Plaintiffs in this matter: Lead Plaintiff Guerrero Sanchez (a stipulation to dismiss this Plaintiff and her claims is pending (ECF No. 120)); Tierra Colter; Corina Garcia; Anthony Harding; Jeanette Hunt; Latanjra Jackson; Erika Martin; Sierra McMartin; Darric Newman; Corey Niass; Jordan Thomas; Angela Tierney; Ajani Williams; Fabian Cordova; William Molony; and Brittany Young. The remaining Defendants are the City of Phoenix, Jeri Williams (the former Chief of Police for the City of Phoenix), Dennis Orender, Douglas McBride, and Benjamin Moore. The matter is not a class action suit; although that distinction was anticipated by Plaintiffs' counsel, the deadline for seeking class certification passed without a request for certification as a class action.
A case management order issued June 28, 2022, required all requests for written discovery be served no later than January 3, 2023. (ECF No. 51 at 2). In an order entered September 16, 2022, the deadlines for discovery were amended as follows:
1. All interrogatories, requests for production of documents, and requests for admissions, shall be served no later than January 3, 2023 (the deadline specified in the Order at ECF No. 51).
2. All written discovery in this matter must be completed, i.e., all disclosures must be supplemented and all responses to requests for written discovery served, no later than March 1, 2023. All fact witness depositions must be taken no later than March 15, 2023.
All other deadlines, requirements, and provisions in the Order at
ECF No. 51 shall apply and be enforced.
The parties are advised to diligently proceed with discovery in this matter. These deadlines will not be further extended, even if the parties so stipulate, absent a showing of extraordinary cause.(ECF No. 85) (emphasis in original).
All Plaintiffs averred they had served their initial disclosures on August 17, 2022. (ECF No. 64). The next notice of service of discovery on behalf of any Plaintiffs was filed four months later, i.e., a notice of service on Defendants of requests for production of documents, interrogatories, requests for admission, and requests for production by Plaintiffs Colter, Cordova, Garcia, Guerrero Sanchez, Jackson, McMartin, Molony, Williams, and Young, docketed December 23, 2022. (ECF No. 97). On December 29, 2022, Plaintiffs Colter, Cordova, Garcia, Guerrero Sanchez, Jackson, McMartin, Molony, Williams, and Young filed notice that they had served on Defendants revised and combined requests for production, requests for admissions, and “withdrawals” of previously-served requests for discovery. (ECF No. 98). There are no notices of service of responses to any of Defendants' requests for discovery prior to January 6, 2023, when Plaintiffs Garcia, Guerrero Sanchez, Jackson, McMartin, Molony, and Williams filed notice that they had served responses to requests for production and non-uniform interrogatories, and Plaintiffs Garcia, Molony, McMartin, Jackson, Williams, and Guerrero Sanchez noticed that they had served their initial disclosures. (ECF No. 99).
On January 20, 2023, Plaintiffs Alvarado, Daood, Haisten, Charlinda Martinez, Victor Martinez, Nevarez, Southworth, Axrenya, Valuroso-Meany, and Vanek stipulated to the dismissal of their claims. (ECF No. 101). On February 3, 2023, the claims of Plaintiffs Anderson, LeMar, and Zenko were dismissed per their stipulation. (ECF No. 107).
On February 21, 2023 (No. 108) the parties stipulated to the dismissal, with prejudice, of the unserved Defendants.
The Defendants named in the Third Amended Complaint who were never served and therefore dismissed included Mark Schweikert, Joshua Wayne Beeks, Jeffrey Smoger, Jorge Acosta, Matthew Kurth, Alonso Lopez, Robert Stika, Craig Webb, Erin Rugg (Rubio), Ben Zamora, Alexis Zamora, Robert Olszewski, Michael Fritz, Ernesto Leon Rocha, Ryan Robertson, Jacob Callison, Chasse McCance, Dennis Tucker, Wayne Williams, Rebecca Rodriguez, Joseph Villareal, Jonathan Scott, and Daniel Grant.
Now pending before the Court is Defendants' motion asking the Court to dismiss the claims of Plaintiffs Harding, Hunt, Martin, Newman, Niass, Thomas, Tierney, Cordova, Colter, and Young, pursuant to Rule 41 of the Federal Rules of Civil Procedure. (ECF No. 112). Defendants contend all of these Plaintiffs “failed to respond” to requests for discovery served on August 18 and August 29, 2022, and failed “to disclose all fact discovery by March 1, 2023.” (ECF No. 112 at 1-2). Defendants contend these Plaintiffs “have not disclosed any evidence to support their claims, the disclosure of their proposed testimony is boilerplate, and the allegations they made in this lawsuit related to various unserved Defendants was false.” (ECF No. 112 at 2). In their motion to dismiss Defendants note that Plaintiffs' counsel provided “what Defendants contend are incomplete discovery responses only for Plaintiffs Williams, Guerrero-Sanchez, Garcia, Molony, McMartin, and Jackson.” (ECF No. 112 at 6).
II. Rule 41(b) of the Federal Rules of Civil Procedure
Plaintiffs have the general duty to prosecute their case. See Lal v. California, 610 F.3d 518, 527 (9th Cir. 2010) (“a litigant has a duty to keep track of the progress of their lawsuit, even when represented by counsel” (internal quotations omitted)); Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b) of the Federal Rules of Civil Procedure provides that if “the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Granting or denying a motion brought pursuant to Rule 41(b) is a matter within the Court's discretion. E.g., Morris v. Morgan Stanley & Co., 942 F.2d 648, 650 (9th Cir. 1991); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).
Although the rule is generally applied in the context of dismissal of an entire case or complaint when the plaintiff has failed to appear, failed to propound requests for discovery, or failed to respond to dispositive motions, whereas Rule 37 generally applies to dismissal of some claims or parties based on the failure to engage in discovery or adequately or entirely respond to requests for discovery, there appears to be no prohibition on dismissing only some claims (and accordingly some plaintiffs) under Rule 41(b). See Hells Canyon Pres. Council v. United States Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005).
The Ninth Circuit Court of Appeals has equated dismissal pursuant to Rule 41(b) to a judgment by default, stating dismissal under Rule 41(b) “is so harsh a penalty it should be imposed as a sanction only in extreme circumstances.” Dahl v. City of Huntington Beach, 84 F.3d 363, 366 (9th Cir. 1996). In determining whether a plaintiff's failure to prosecute warrants dismissal of a claim, the Court must weigh the following five 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.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotations omitted). Additionally, short of gross negligence on the part of plaintiff's counsel, the Supreme Court has found “no merit” to the argument that the client should not be punished for the sins of the lawyer. Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962). See also Community Dental Servs. v. Tani, 282 F.3d 1164, 1169 (9th Cir. 2002) (applying the “gross negligence” rule regarding the entry of judgment by default).
III. The Parties' Dispute
Defendants contend dismissal of Plaintiffs Harding, Hunt, Martin, Newman, Niass, Thomas, Tierney, Cordova, Colter, and Young (hereinafter “the subject Plaintiffs”), and their claims against Defendants, is warranted because these Plaintiffs failed to respond to requests for discovery served as early as the end of August of 2022. Defendants contend the subject Plaintiffs, who will ultimately bear the burden of producing some evidence supporting their claims for relief, have not prosecuted their claims by producing evidence of their claims or damages, nor even provided any specific factual assertions regarding those claims and damages.
Plaintiffs' response to the motion to dismiss states, in its entirety:
In an effort to avoid inundating the Court with redundant pleadings, Counsel incorporates by reference their reply in support of their motion to withdraw as attorneys, which fully sets forth Counsel's efforts to inform the above-identified Plaintiffs of the need to retain new counsel immediately and respond to discovery as soon as soon as possible (ECF No. 116), as well as Plaintiffs' briefing in support of their motion for a telephone conference and for modification of the schedule in this matter. ECF Nos. 113 and 117. For the reasons set forth therein, Counsel respectfully requests that the Court hold Defendants' motion in abeyance until a telephone conference can be set or, alternatively, provide a date certain by which the above-identified Plaintiffs must notify the Court of their intention to proceed in this matter and produce responses to the requested discovery.(ECF No. 118 at 2).
The deadlines for responding to Defendants' requests for discovery have long since expired and, as Plaintiffs' counsel represents elsewhere, counsel is not in contact with at least some of these Plaintiffs.
For counsel to presume it the Court's responsibility to parse through other pleadings on other motions to discern their argument for denying Defendants' motion to dismiss is simply unacceptable. Furthermore, the pleading at ECF No. 113 was filed on behalf of Plaintiffs Garcia, Molony, Jackson, Williams, and McMartin, rather than on behalf of any of the subject Plaintiffs; notably, at this date counsel are still counsel of record for the subject Plaintiffs.
In the pleading at ECF No. 113, the Plaintiffs (other than the subject Plaintiffs) assert that they did not respond to Defendants' requests for discovery in reliance of an “agreement that certain discovery requests would be rendered moot and/or overbroad.” (ECF No. 113 at 3). In that pleading there is no clear contention that the subject Plaintiffs, i.e., Harding, Hunt, Martin, Newman, Niass, Thomas, Tierney, Cordova, Colter, and Young, failed to respond to requests for discovery for this same reason. In the pleading at ECF No. 113 Plaintiffs' counsel implies that, because they notified Defendants that they would not continue to represent Harding, Hunt, Martin, Newman, Niass, Thomas, Tierney, Cordova, Colter, and Young, and that Defendants did not “advise Plaintiffs that they considered their previously served discovery requests to be outstanding or overdue,” this somehow precludes Defendants from seeking to dismiss these Defendants for the failure to respond to requests for discovery served six months ago. (ECF No. 113 at 4).
Plaintiffs' motion at ECF No. 113 requests a hearing on all counsels' motion (ECF No. 111) to withdraw as counsel of record for the subject Plaintiffs (which is opposed by Defendants only with regard to counsel at The People's Law Firm, PLC), and a hearing on Defendants' motion to dismiss the subject Plaintiffs for want of prosecution (ECF No. 112). The motion at ECF No. 113 also asks the Court to amend the scheduling order to allow for additional time to depose fact witnesses, and additional time to provide expert witness disclosure and take expert witness depositions, and seeks a hearing on this request.
This argument is unavailing. Defendants served requests for discovery. Plaintiffs were required to respond to the requests within the time stated in the Federal Rules of Civil Procedure, and Plaintiffs failed to respond within the required time. If Plaintiffs believed Defendants had acquiesced to an extension of the time allowed to respond to the requests, the appropriate means of soldifying that understanding or agreement would be to file a stipulation so stating on the record. The parties cannot agree to subvert the Federal Rules, the case management order, or this Court's authority to enforce deadlines.
Plaintiffs' counsel further asserts:
It wasn't until December 23, 2022-two days before the Christmas holiday-that Defendants first advised Plaintiffs that they considered their previously-served discovery requests to be outstanding and overdue. Despite the intervening holidays, Defendants demanded that all twentyeight former class representatives serve responses to Defendants' previously served, overbroad discovery requests within fourteen days-by January 6, 2023 (Id.). Plaintiffs then contend that “in a good faith effort to promptly provide Defendants with as much information as possible regarding the identified Plaintiffs' claims, Plaintiffs' counsel worked through the holidays and, on January 6, 2023, provided Defendants with individual initial disclosures and responses to Defendants' previously served discovery requests for six of the nine Plaintiffs that Plaintiffs' counsel identified to Defendants. [footnote 3: Plaintiffs counsel have since moved to withdraw from representation of the three individuals whose discovery responses were not served because of a lack of ability to communicate with them.](ECF No. 113 at 4 & n.3).
In their motion to withdraw as counsel for Harding, Hunt, Martin, Newman, Niass, Thomas, Tierney, Cordova, Colter, and Young, counsel for Plaintiffs assert they must withdraw because there is a conflict with their clients which requires withdrawal pursuant to Arizona Rules of Professional Conduct 1.16(a)(1). (ECF No. 111 at 2). Counsel does not detail when they lost contact with their clients, or whether these clients had provided any discoverable information relative to the remaining claims or Defendants prior to counsel losing contact with these clients. Plaintiffs' counsel does not clearly assert in the pleading at ECF No. 111 that any of the subject Plaintiffs, through counsel, provided any discovery requested by Defendants on or prior to January 6, 2023.
Plaintiffs's counsel further contends, on behalf of Plaintiffs other than the subject Plaintiffs, that on or about March 6, 2023, they produced 18,398 pages of documents, and supplemental interrogatory responses, further identifying the “exact nature of Plaintiffs' excessive force claims.” (ECF No. 113 at 5-6). Plaintiffs do not identify whether or not any of the produced documents were in response to requests by Defendants for discovery from Harding, Hunt, Martin, Newman, Niass, Thomas, Tierney, Cordova, Colter, and Young.
In their pleading at ECF No. 117, Plaintiffs do not discuss the merits of the motion to dismiss, but imply that Defendants have raised “a multitude of issues concerning Plaintiffs' discovery responses ...” as a “red herring[] designed to distract the Court from the sole issue at hand,” i.e., “whether the case schedule should be modified to allow” the coordination of the deposition of the Defendants remaining in this matter with the depositions of the Defendants in other matters (which matters are before other judges and present other claims brought by different plaintiffs). (ECF No. 117 at 5 n.2).
IV. Analysis of the Carey Factors
In determining whether a plaintiff's failure to prosecute warrants dismissal of a claim, the Court must weigh the following five 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.”
The first factor weighs in favor of granting Defendants' motion. The deadlines for completing fact discovery have passed. Dismissing the subject Plaintiffs and the claims that have not been prosecuted will allow the parties and the Court to focus their resources on addressing the remaining claims and defenses.
The second factor also weighs in favor of granting Defendants' motion. This matter was initiated on May 28, 2021, and has now been pending for almost two years. The operative complaint, Plaintiffs' Third Amended Complaint naming 28 Plaintiffs and 100 Defendants, was docketed June 27, 2022 (ECF No. 49), more than a year after the initial complaint was filed. If the motion to dismiss is granted, there will be five remaining Plaintiffs (four, if Guerrero Sanchez is dismissed per the parties' stipulation), and five remaining Defendants. The Court's management of its docket will be facilitated by eliminating Plaintiffs who have indicated, through their absence, that they do not intend to further pursue their claims.
The third Carey factor also weighs in favor of granting Defendants' motion. Defendants will be prejudiced if forced to continue defending against claims which the subject Plaintiffs have not prosecuted. The subject Plaintiffs have provided no evidence supporting their claims, have not responded to interrogatories or requests for admission establishing specific factual predicates for their claims, and have not provided any substantive evidence of damages.
The fourth factor of the analysis is with regard to the preference for resolving cases on their merits. Although a resolution on the merits is the preferred outcome, the specific claims of the subject Plaintiffs cannot be resolved on the merits absent these Plaintiffs' participation in prosecuting their claims.
With regard to the fifth Carey factor, there appear to be no lesser sanctions which will result in the subject Plaintiffs becoming involved in this case at this time. The subject Plaintiffs have, according to their counsel, failed to stay in contact with their own counsel or provide their own counsel with current contact information. Per the subject Plaintiffs' counsel, these Plaintiffs have been informed of the importance of responding to requests for discovery, which they failed to do, and have been informed of the pending motion to dismiss their claims and failed to contact their counsel or the Court to personally oppose granting the motion to dismiss.
Accordingly, IT IS RECOMMENDED that Defendants' motion to dismiss at ECF No. 112 be granted.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b)(2), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).