Opinion
CV-00-1681-ST
November 12, 2002
FINDINGS AND RECOMMENDATION
INTRODUCTION
Plaintiffs are trustees of a health fund, pension fund, vacation fund, and apprenticeship fund, as well as the Pacific Regional Council of Carpenters. They seek to recover fringe benefit contributions and union dues for the time period May 20, 1997, through May 21, 2001, from defendants, Charles R. Lee and Rick S. Burrill who did business under the assumed business name of C.L. Enterprises as a general contractor in Hermiston, Oregon. The Second Amended Complaint alleges claims for breach of a collective bargaining agreement and violations of 29 U.S.C. § 1132(a)(3) and 1145 ("ERISA"). This court has jurisdiction pursuant to 29 U.S.C. § 1132(e)(1) of ERISA and 29 U.S.C. § 185(a) of the Labor and Management Relations Act.
Now pending before this court is plaintiffs' Motion for Sanctions Pursuant to Rule 37(b) of the Federal Rules of Civil Procedure (docket #68). Defendants filed no response to this request within the time allowed by the Local Rules. For the following reasons, this motion should be granted.
DISCUSSION
On August 15, 2002, this court entered an Order requiring defendants to produce documents responsive to plaintiffs' Second and Third Requests for the Production of Documents (docket #51). Prior to that time, defendants, who initially appeared pro se and had obtained several extensions of time, hired an attorney who filed an Answer to the First Amended Complaint. However, on July 5, 2002, this court granted leave to defendants' attorney to withdraw (docket #41). On August 16, 2002, plaintiffs then filed a Second Amended Complaint, followed by a Motion for Summary Judgment on September 10, 2002 (docket #55). After granting defendants' letter motion for an extension of time, that motion will be taken under advisement on December 2, 2002 (docket #64).
On August 19, 2002, plaintiffs' counsel sent defendants a copy of the August 15, 2002 Order and a letter of explanation. Affidavit of Stephen H. Buckley in Support of Motion for Sanctions, ¶ 4 Exhibit 4. In accordance with Local Rule 37.3, this letter requested production of responsive documents within seven days after receipt of the letter. Neither of the letters sent to defendants were returned by the postal service. Id. Defendants have produced no documents responsive to this Court's Order and have not communicated to plaintiffs' counsel whether they intend to comply with that Order. Id, ¶ 5.
Sanctions for discovery abuse are governed by Federal Rules of Civil Procedure ("FRCP") 37. If a party "fails to obey an order to provide or permit discovery," including an order to compel, then FRCP 37(b)(2) authorizes the court to "make such orders in regard to the failure as are just," including an order designating certain facts as proven, prohibiting certain matters from being introduced into evidence, striking pleadings, dismissing the action, or even "rendering a judgment by default against the disobedient party."
The decision to impose sanctions under FRCP 37 is left to the court's discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976); Forro Precision, Inc. v. IBM Corp., 673 F.2d 1045, 1053 (9th Cir 1982). In that regard, the district court "has great latitude." Dahl v. City of Huntington Beach, 84 F.3d 363, 367 (9th Cir 1996). Exercise of that discretion has been "encouraged" when "counsel or a party has acted willfully or in bad faith in failing to comply with rules of discovery or with court orders enforcing the rules or in flagrant disregard of those rules and orders." G-K Properties v. Redevelopment Agency of the City of San Jose, 577 F.2d 645, 647 (9th Cir 1978). As explained by the Ninth Circuit:
Litigants who are willful in halting the discovery process act in opposition to the authority of the court and cause impermissible prejudice to their opponents. It is even more important to note, in this era of crowded dockets, that they also deprive other litigants of an opportunity to use the courts as a serious dispute-settlement mechanism.
Id.
A court may impose even the "most severe" sanction to fulfill the purpose, "not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." National Hockey League, 427 U.S. at 643 (affirming extreme sanction of dismissal for violation of FRCP 37).
Because defendants have not complied with this court's Order to produce responsive documents, plaintiffs are placed in a difficult situation should their motion for summary judgment be denied. Their ability to review defendants' documents before trial and present relevant documents as exhibits at trial will be frustrated. Thus, plaintiffs clearly are entitled to sanctions pursuant to FRCP 37(b)(2). Plaintiffs seek imposition of the following sanctions on defendants:
(1) Declaring defendants jointly and severally responsible for plaintiffs' attorney fees incurred to bring this motion;
(2) Ordering defendants to produce all documents within their possession, custody and control in response to the Second and Third Requests for Production of Documents;
(3) Admonishing defendants that if they fail to adhere to this Order, the court may impose more severe sanctions, including entry of default against them.
These requests are eminently reasonable under the circumstances. Pursuant to FRCP 37(b)(2), attorney fees shall be awarded in addition to any other sanction "unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust." Id. This court has received no information from defendants to preclude an award of attorney fees to plaintiffs.
RECOMMENDATION
For the reasons set forth above, plaintiffs' Motion for Sanctions Pursuant to Rule 37(b) of the Federal Rules of Civil Procedure (docket #68) should be GRANTED and the court should order that:
(1) Defendants are jointly and severally liable for plaintiffs' attorney fees incurred to bring this motion;
(2) Defendants shall produce all documents within their possession, custody and control in response to the Second and Third Requests for Production of Documents within seven days after receipt of the court's Order adopting these Findings and Recommendation;
(3) If defendants fail to comply with the Order, the court may impose more severe sanctions, including entry of default against them.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due December 2, 2002. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.If objections are filed, the response is due no later than December 19, 2002. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.