Opinion
CV-20-8138-PCT-JAT (JFM)
11-24-2021
Carolin Isabelle Hauser, Plaintiff v. Elijah M. Smith, et al., Defendants.
REPORT & RECOMMENDATION
James F. Metcalf United States Magistrate Judge
Under consideration is Plaintiff's Response to Order to Show Cause and Motion for Reconsideration (Doc. 135), and Supplement thereto (Doc. 138).
This matter is before the undersigned magistrate judge on referral for pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). Local Rule of Civil Procedure 72.2(a)(1) provides: “In any motion in which the parties are seeking the sanctions provided for in Rule 37(b)(2)(A), (B), or (C), Federal Rules of Civil Procedure, if the Magistrate Judge is inclined to grant such requests the Magistrate Judge shall be limited to filing a report and recommendation with the District Court; a Magistrate Judge may enter an order denying any such request.” Because the undersigned is inclined to grant dispositive sanctions, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
A. BACKGROUND
Plaintiff (who is not proceeding in forma pauperis and is not a detainee or prisoner) has filed a pro se Complaint (Doc. 1) asserting, inter alia, claims under 42 U.S.C. § 1983 and state law. Plaintiff filed an Amended Complaint (Doc. 33) on November 3, 2020. Service proceeded and following motions to dismiss and a stay of discovery, answers have been filed and an Order (Doc. 104) was issued on June 21, 2021 requiring the parties to confer and submit their Rule 26(f) Joint Case Management Report by July 21, 2021.
The parties did not do so, and on July 27, 2021 the Court issued a first Order to Show Cause (Doc. 110) directing the parties to show cause why sanctions should not be imposed pursuant to Federal Rule of Civil Procedure 15(f) and 37(f). Plaintiff did not respond, but Defendants filed a Response (Doc. 111) arguing the parties had conferred, and a draft Report was sent to Plaintiff. Plaintiff did not respond with her modifications, and counsel again contacted Plaintiff, who declined to participate in preparing the Report because she did not intend to seek discovery. Defendants reported no further response from Plaintiff since the order to show cause. Defendants Response was filed August 3, 2021. A reply was due from Plaintiff no later than August 13, 2021. None was filed.
On August 19, 2021 the Court filed an Order (Doc. 119) concluding that “sanctions against Plaintiff are appropriate under Federal Rule of Civil Procedure 16(f). As Defendants reported to Plaintiff, her lack of intent to seek discovery did not excuse her from complying with the Court's Order by participating in the discovery planning process as previously ordered.” (Order 8/19/21, Doc. 119 at 1.) Defendants were directed to file a response addressing the appropriate sanctions, and a deadline for Plaintiff to reply was set. (Id.)
On August 27, 2021, Defendants responded (Doc. 120) arguing that although Plaintiff participated in the planning conference, “Plaintiff then disengaged; refusing to provide additional information for the joint report, to authorize its filing, or preparing for or participating in those activities necessary to a meaningful Rule 16 Conference, and case processing including case discovery.” (Id. at 2-3.) Defendants further reference “Plaintiff's history of unauthorized filings, submitting prolix and unnecessarily complex pleadings, and filing a motion for summary that ignored this Court's dismissal of a number of claims. Plaintiff has shown this Court she is ready and willing to ignore Court Orders, and Rules, and litigate this case on her own terms - and unilaterally so.” (Id. at 3.) Defendants equate Plaintiff's conduct to failure to prosecute and argue that support dismissal or at a minimum an award of expenses related to the JCMR, the “frivolous Rule 56 Motion, ” and “Plaintiff's unnecessarily long, and in many respects legally unsupported, pleadings.” (Id. at 3-4.)
Plaintiff's time to reply expired on September 7, 2021. No reply was filed.
In an Order filed September 14, 2021, the Court observed that “Plaintiff's unwillingness to respond indicates that sanctions less drastic than dismissal…may not be effective, but that “the Court has not yet attempted lesser sanctions.” (Order 9/14/21, Doc. 125 at 5.) Accordingly, the Court concluded that the appropriate sanction was an award of attorneys fees and set a deadline for Defendants to file their application for fees, and briefing thereon.
On September 28, 2021, Defendants filed their Motion for Attorneys Fees (Doc. 126), and subsequently a Notice of Errata (Doc. 127). On October 5, 2021, Plaintiff filed a ““Response to Yavapai County Defendants Response to Court Order (Doc. 119)” (Doc. 130). In that filing, Plaintiff argued she should not be sanctioned (because she had purportedly complied with the Court's orders), opposed an award of expenses or dismissal, and demanded summary judgment in her favor. Defendants replied (Doc. 131) pointing out the lack of opposition to the requested fees or valid basis to avoid the award.
The Court concluded this was untimely as a reply on the Order to Show Cause, or as a motion for reconsideration on the grant of sanctions. The Court further concluded the filing presented no basis for reconsideration, and failed to qualify as a motion for summary judgment. The Court concluded the requested fees were appropriate, and ordered Plaintiff to pay Defendants $2,283.75 in fees. (Order 10/15/21, Doc. 133.)
In the meantime, the Court continued to obtain Plaintiff's compliance with the Scheduling Order. In the Order on sanctions (Doc. 125), the Court also set a process for completing the JCMR, including service of a draft on Plaintiff, service of proposed changes by Plaintiff, and filing of the joint report. Defendants filed their Notice of Service (Doc. 129) indicating service of the draft Joint Case Management Report on September 29, 2021. Plaintiff had not filed a notice of service of her proposed changes, which should have been served by October 12, 2021. According, on October 14, 2021, the Court issued a second Order to Show Cause (Doc. 132), requiring Plaintiff to show cause why this case should not be dismissed or other sanctions levied under Rule 16(f) or 37(f) as a result of Plaintiff's failure to serve her proposed changes to the joint case management report and to file a notice of service thereof.
On October 21, 2021, Plaintiff responded (Doc. 135). The Court observed that Plaintiff referenced various rules related to summary judgment which were unfamiliar to the Court and asserted a failure by Defendants to oppose the Amended Complaint. Plaintiff was directed to file a supplement providing quotations of and citations to the referenced rules and to confirm to the Court that Plaintiff was aware of the Defendants Answer (Doc. 102). (Order 10/26/21, Doc. 137.)
In the meantime Defendants filed a reply (Doc. 136) arguing that Plaintiff's Response did nothing to show cause for her failure to comply with the Court's Order, but instead simply repeated assertions that discovery should not be allowed. Defendants request a dismissal, with prejudice.
On November 4, 2021, Plaintiff filed her 83-page Supplement (Doc. 138) which fails to quote or cite the summary judgment rules referenced, and arguing that Defendants' Answer was untimely and thus her contentions in the Amended Complaint are unopposed and the motions to dismiss thus fraudulently filed. Plaintiff includes assertions that the procedures on summary judgment have not been made clear to her, that the undesigned is failing to follow the rules, and that the undersigned improperly identifies himself in various orders as “the Court, ” and therefore must recuse himself.
Plaintiff continues to argue that there is a requirement for the parties to confer on a joint statement of facts in support of summary judgment, but now cites to no authority for this contention. (Suppl. Resp., Doc. 138 at 31, ¶ 70.)
Defendants' Answer to the Amended Complaint was filed on June 15, 2021 (Doc. 102), which was 12 days after the denial of their Motion to Dismiss (see Order 6/3/21, Doc. 101). See Fed. R. Civ. P. 12(a)(4)(A) (requiring responsive pleading with 14 days after a denial of a motion to dismiss). Plaintiff quotes this rule, but nonetheless asserts that Defendants were in default 21 days after service of the Amended Complaint. (Supp., Doc. 138 at 2-4.)
In the course of striking Plaintiff's various motions for summary judgment, the Court has reviewed various requirements for motions for summary judgment in three separate Orders. (See Order 7/23/21, Doc. 109; Order 8/12/21, Doc. 116; Order 9/7/21, Doc. 124.) Nonetheless, “federal district judges have no obligation to act as counsel or paralegal to pro se litigants…Requiring district courts to advise pro se litigants in such a manner would undermine district judges' role as impartial decision-makers.” Pliler v. Ford, 542 U.S. 225, 226 (2004).
Pursuant to 28 U.S.C. § 455, the Court must recuse “only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988). Even assuming legal error by a judge could satisfy this standard, Plaintiff fails to show any legal error.
On November 9, 2021, Defendants filed their supplemental reply (Doc. 139), noting Plaintiff's failure to address the issues required, and instead asserting baseless arguments on default, summary judgment, and the lack of need for discovery. Defendants append a copy of an email forwarding Plaintiff a copy of their Answer on June 15, 2021, with a copy to follow by mail.
B. SANCTIONS APPROPRIATE
Federal Rule of Civil Procedure 37(f) provides:
If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure.
Federal Rule of Civil Procedure 16(f) further provides for sanctions under Rule 37(b)(2)(A)(ii)-(vii) if a party “fails to obey a scheduling or other pretrial order.” Those sanctions include dismissal, default judgment, and/or contempt.
Here, Plaintiff has repeatedly failed and refused to comply the Court's Orders to participate in preparing the Joint Case Management Report. The only good faith argument offered by Plaintiff has been her original assertion that she did not intend to conduct discovery. But the Court disabused Plaintiff of the notion that this argument sufficed in ruling on the first Order to Show Cause. Plaintiff's continued reliance on this argument can only be deemed to be in bad faith.
Plaintiff purports to circumvent the discovery process by filing motions purporting to be Rule 56 motions for summary judgment. Despite explicit direction from the Court on July 23, 2021 (Doc. 109) that a properly supported separate statement of facts was required to support such a motion, Plaintiff proceeded to file two more motions without such. (See Order 8/12/21, Doc. 116; and Order 9/7/21, Doc. 124.) Even so, a motion for summary judgment does not (at least until granted), provide any basis to avoid compliance with the discovery and discovery planning processes.
Now, at the eleventh hour, Plaintiff raises the argument that compliance shouldn't be required because Defendants are in default. Apart from being legally flawed, any good faith with regard to this argument is belied by Plaintiff's failure to seek entry of default or default judgment under Federal Rule of Civil Procedure 55, and failure to argue it in response to the original Order to Show Cause.
In sum, Plaintiff's course of conduct makes clear that she simply does not intend to comply with the Court's orders, or to participate in framing a discovery plan. Thus, sanctions are appropriate.
C. APPROPRIATE SANCTIONS
Rule 37(b)(2)(A)(v) permits as a sanction “dismissing the action or proceeding in whole or in part.” Such a sanction, if justified, is appropriate for failure to participate in pretrial conferences as ordered. See Nascimento v. Dummer, 508 F.3d 905, 909 (9th Cir. 2007). The Ninth Circuit has adopted a multi-factor analysis for applying such a sanction:
We have constructed a five-part test, with three subparts to the fifth part, to determine whether a case-dispositive sanction under Rule 37(b)(2) is just: “(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.” The sub-parts of the fifth factor are whether the court has considered lesser sanctions, whether it tried them, and whether it warned the recalcitrant party about the possibility of case-dispositive sanctions. This “test” is not mechanical. It provides the district court with a way to think about what to do, not a set of conditions precedent for sanctions or a script that the district court must follow.Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). "The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
As with the first Order to Show Cause, the first (expeditiousness), second (management), and third (prejudice) factors favor dismissal of this case. Plaintiff's failure to participate in the discovery planning process, and failure to respond to the Court's orders to show cause until sanctions are being imposed, indicates that Plaintiff is content to let the case languish until Defendants and the Court agree to conduct the case on her terms. The same things prevent this Court from effectively managing its docket. Without Plaintiff's participation, Defendants are left to chase Plaintiff to attempt to plan discovery to defend the case, and expending substantial time and resources in doing so.
It is true that Plaintiff has not wholly abandoned the case. She has filed Motions for Summary Judgment. But even there, Plaintiff has repeatedly failed to comply with not only the Rules, but the explicit direction of the Court of what was needed to comply. Moreover, the repeated deficiencies in these filings and in her 83 pages Supplemental Response (Doc. 138) demonstrates the intent to engage in diatribes is stronger than the intent to actually litigate Plaintiff's claims.
The fourth factor (merits), as always, weighs against dismissal.
The fifth (less drastic sanctions) factor requires the Court to consider whether a less drastic alternative is available, attempted, and whether the party was warned. Plaintiff was warned in the Court's orders to show cause about the risk of dismissal, and the Court sought Plaintiff's explanation to permit an attempt to address matters necessary to moving the case forward. Here, the Court has attempted an award of expenses as a less drastic sanction without any effect. Plaintiff's repeated refusals to follow the Court's orders has demonstrated that sanctions less drastic than dismissal will not be effective.
The undersigned finds only one less drastic remedy, that is a dismissal without prejudice. Accordingly, the undersigned will recommend a dismissal without prejudice as a sanction under Rule 16(f). See Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 1987) (upholding dismissal with prejudice “where the plaintiff has purposefully and defiantly violated a court order”).
However, given Plaintiff's apparent willingness to beat a dead horse, the undersigned finds that this by itself will not be sufficient to prevent a repeat of this conduct if Plaintiff elects to again file this suit. Rule 37(f) permits an award of expenses, including attorneys fees as a sanction for failing “to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f).” The awardable expenses are those “caused by the failure.” Accordingly, the undersigned will also recommend that the Court award Defendants their expenses, including attorneys fees, incurred since the expenses included in the prior award, i.e. after August 27, 2021. (See Motion for Attorneys Fees, Exh. 3, Itemized Fee Statement, Doc. 126-1 at 7.) Such expenses should be limited to those caused by Plaintiff's failure to participate in framing the discovery plan, to include those incurred in connection with the filings at Dockets 121 through 139. While this includes Plaintiff's latest attempt at seeking summary judgment (Docs. 121-123), Plaintiff's Supplemental Response (Doc. 138) makes clear that these were intertwined with her refusals to comply with the Court's orders.
D. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72, 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. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
E. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) That this action be DISMISSED WITHOUT PREJUDICE as a sanction under Fed.R.Civ.P. 16(f).
(B) That Defendants be awarded their expenses, including attorneys fees, under Fed.R.Civ.P. 37(f) as discussed herein.
(C) That Defendants be given 14 days from the filing of an order on this Report & Recommendation to file their application for such expenses, Plaintiff be given 14 days from service thereof to reply thereto, and Defendants 7 days from service of such response to reply thereto.