Little v. Kensey

Full title: STEVEN WARD LITTLE, Plaintiff, v. SHANDARA THOMAS KENSEY; TODD CURTIS…

Court: United States District Court, E.D. California

Date published: Oct 5, 2005

1:03-cv-06118 OWW DLB (E.D. Cal. Oct. 5, 2005)

Opinion

1:03-cv-06118 OWW DLB.

October 5, 2005

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS KENSEY, CURTIS, KELLER, LARA, AND JENNINGS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 37(b)(2)(C).

OLIVER WANGER, District Judge

Defendants SHANDRA THOMAS KENSEY, TODD CURTIS, GARY KELLER, LUIS LARA, and SETH JENNINGS ("Defendants") move to dismiss Plaintiff's case as a discovery sanction pursuant to Federal Rule of Civil Procedure 37(b)(2)(C). (Doc. 46) STEVEN WARD LITTLE ("Plaintiff"), proceeding pro se, has not opposed the motion. Oral argument was set for October 3, 2005, although no party appeared. The matter was submitted on the papers.

Plaintiff filed this action on August 18, 2003. (Doc. 1, Compl.) Plaintiff's causes of action arise out of his claims that (1) officials of the California Highway Patrol and the County of Merced violated Plaintiff's civil rights under 42 U.S.C. § 1983; and (2) Plaintiff's first attorney committed legal malpractice in his representation of Plaintiff in this matter. ( See Doc. 1)

On August 15, 2005, this case was " DISMISSED WITH PREJUDICE in its entirety for failure to comply with court orders regarding discovery and for failure to prosecute." (Doc. 57, Order 6-7 (emphasis in original)) This order issued in response to the motion to dismiss pursuant to Fed.R.Civ.P. 37(b)(2)(C) filed by the COUNTY OF MERCED, DOUGLAS HAYS, JOHN McKNIGHT, and CALEB HEGGLAND, who are referred to as the "County Defendants." The remaining Defendants in this case, SHANDRA THOMAS KENSEY, TODD CURTIS, GARY KELLER, LUIS LARA, and SETH JENNINGS ("Defendants"), now move to dismiss Plaintiff's complaint against them pursuant to the same Federal Rule of Civil Procedure. (Doc. 61, Defs.' Mem.)

Defendants' arguments are essentially identical to the arguments made in support of the earlier motion filed by the County Defendants. Defendants argue that Plaintiff's case should be dismissed for failure to provide discovery and for failure to obey a court order. Defendants argue that: (1) Plaintiff failed to obey the January 26, 2005 district court order to respond to written discovery requests no later than February 23, 2005 (Doc. 36, Order, filed January 27, 2005); (2) Plaintiff failed to obey the magistrate judge's order to respond to discovery within ten (10) days of service of the order (Doc. 55, Order, filed August 1, 2005); (3) Plaintiff failed to obey the magistrate judge's order to pay sanctions to Defendants' counsel in the amount of $417.00 on or before August 31, 2005 ( id.). Other factual allegations relating to the procedural and factual background of this case are addressed in the January 2005 Order (Doc. 36) and the August 2005 Order (Doc. 57).

Federal Rule of Civil Procedure 37(b)(2)(C) authorizes the court to dismiss an action if a party fails to obey a court order to provide discovery:

If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

* * *

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party. . . .

Fed.R.Civ.P. 37(b)(2)(C) (emphasis added).

For all reasons stated in the August 2005 Order (Doc. 57), Defendants' motion to dismiss Plaintiff's Complaint is GRANTED. Plaintiff's case is DISMISSED WITH PREJUDICE in its entirety as to all defendants for failure to comply with court orders regarding discovery and for failure to prosecute.

SO ORDERED.