DuBose v. Hilton Grand Vacations Club, LLC

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Barbara DuBose, Case No. 2:24-cv-00648-GMN-DJA 6 Plaintiffs, 7 Order v. 8 Hilton Grand Vacations Club, LLC, 9 Defendant. 10 11 Before the Court is Defendant Hilton Grand Vacations Club, LLC’s brief regarding 12 sanctions related to Plaintiff’s failure to attend the Early Neutral Evaluation and the subsequent 13 show cause hearing before the Honorable Magistrate Judge Maximiliano D. Couvillier (ECF No. 14 36), Defendant’s motion to extend time (ECF No. 38), and Defendant’s motion for sanctions 15 regarding Plaintiff’s failure to respond to discovery requests (ECF No. 39).1 Plaintiff has not 16 responded to any of these filings. Because the Court finds that Defendant has shown good cause 17 for extending discovery in this matter, the Court grants Defendant’s motion to extend time. (ECF 18 No. 38). Because the Court finds that sanctions are warranted, but that there are lesser sanctions 19 than dismissal available at this stage, the Court grants in part and denies in part Defendant’s 20 motion for sanctions and requests for sanctions related to the Early Neutral Evaluation. (ECF 21 Nos. 36, 39). 22 I. Background. 23 This is an employment discrimination case arising out of Plaintiff’s employment with 24 Defendant between September 16, 2021 and October 1, 2022. (ECF No. 1-3 at 5-6). Defendant 25

26 1 Because Defendant has filed both a brief regarding sanctions related to the Early Neutral 27 Evaluation (ECF No. 36) and a motion for sanctions related to discovery (ECF No. 39), Judge Couvillier has referred the Early Neutral Evaluation Sanctions issue to the undersigned magistrate 1 removed this action on April 3, 2024. (ECF No. 1). The case was then scheduled for an Early 2 Neutral Evaluation set to take place on July 9, 2024 in front of Judge Couvillier. (ECF No. 7). 3 Plaintiff’s counsel withdrew their representation of her on June 20, 2024. (ECF No. 24). 4 On July 3, 2024, Judge Couvillier entered a minute order noting that Plaintiff had failed to 5 submit her confidential settlement statement. (ECF No. 28). As a result, Judge Couvillier 6 vacated the July 9, 2024 Early Neutral Evaluation and converted it to a status hearing. (Id.). 7 Plaintiff did not appear for the status hearing. (ECF No. 29). But later that evening, Plaintiff 8 emailed Defendant’s counsel regarding her discovery responses and explained the following: 9 Currently, I’m with child and expecting my delivery very soon. I do apologize for my lateness but my child will be delivered very 10 soon. It was a happy surprise as I didn’t find out until later on which is why I’ve been unavailable. 11 12 I do need an extension on the interrogatories and to seek counsel. Can we extend this until the end of October if possible? 13 Again, I apologize for my late response but I’m at the doctor most 14 of the time with the baby being due soon. 15 Please do let me know if we can extend it and I’ll put you in touch with my new counsel once I have obtained legal representation. 16 17 (ECF No. 38-3 at 3). 18 Because Plaintiff did not appear at the July 9, 2024 status conference, Judge Couvillier 19 entered an order for Plaintiff to appear at a hearing on August 8, 2024 to show cause why 20 sanctions should not issue. (ECF No. 30). A few hours before the hearing, Plaintiff responded to 21 an email from Defendant providing her with Defendant’s notice of non-opposition that it filed 22 related to Defendant’s motion to extend time (ECF Nos. 32, 33). (ECF No. 36-3 at 2). In her 23 email, Plaintiff stated: 24 I see the motion was filed without mention of me being pregnant and having a C-Section which is not allowing me to show up in court 25 today. 26 The motion reads as if I’m evading the court when in fact I was a 27 High Risk Pregnancy. Nor do I have clearance from my doctor to do anything but heal for the next 6-8 weeks. Please advise and amend the motion to include my reasoning of why 1 I am unable to show up in court due to my child’s birth. Also, my 2 new council [sic] hasn’t been assigned yet but I’ll put them in touch with you once it is finalized. 3 Again, I’m not ignoring you but I’m healing from a serious surgery 4 to get my child delivered safely along with assigning new council [sic]. 5 6 (ECF No. 36-3 at 2).2 7 Plaintiff failed to appear at the show cause hearing. (ECF No. 35). Judge Couvillier thus 8 found sanctions to be appropriate and ordered Defendant to file a brief regarding Federal Rule of 9 Civil Procedure 16(f) sanctions in response to Plaintiff’s non-compliance with the settlement 10 conference orders and process. (Id.). Defendant filed that brief, requesting case terminating or 11 monetary sanctions under Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A)(vii), on August 12 29, 2024. (ECF No. 36). Plaintiff did not respond to that brief. (ECF No. 37). 13 On September 16, 2024, Defendant filed a motion to extend time, seeking to extend 14 discovery deadlines by sixty days due to Plaintiff’s failure to respond to Defendant’s discovery 15 requests. (ECF No. 38). Defendant also moved for case terminating sanctions or to compel 16 Plaintiff to respond to its discovery requests under Federal Rule of Civil Procedure 37 for 17 Plaintiff’s failure to respond to Defendant’s discovery requests. (ECF No. 39). Plaintiff did not 18 respond to either motion. (ECF Nos. 40, 41). 19 II. Sanctions. 20 Defendant moves for case terminating or monetary sanctions under Federal Rules of Civil 21 Procedure 16(f) and 37(b)(2)(A)(vii) for Plaintiff’s failure to attend the Early Neutral Evaluation 22 and for Plaintiff’s failure to obey the Court’s orders related to that Early Neutral Evaluation. 23 (ECF No. 36). Defendant also moves for case terminating sanctions or to compel Plaintiff to 24 respond to discovery under Federal Rule of Civil Procedure 37 for Plaintiff’s failure to respond to 25 Defendant’s discovery requests. (ECF No. 39). 26

27 2 Other than these two emails, Defendant explains that Plaintiff has not responded to its counsel’s 1 The rules governing Defendant’s brief regarding Plaintiff’s failure to appear at the Early 2 Neutral Evaluation provide as follows. Federal Rule of Civil Procedure 16(f) provides that a 3 court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii) if a party 4 fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order. Fed. R. 5 Civ. P. 16(f)(1)(A), (C). One of the sanctions available under Rule 37(b)(2)(A) is dismissing the 6 action. Fed. R. Civ. P. 37(b)(2)(A)(v). Federal Rule of Civil Procedure 16 also provides that, 7 instead of or in addition to any other sanction, the Court must order the party to pay the 8 reasonable fees—including the attorneys’ fees—incurred because of any noncompliance with the 9 rule, unless the noncompliance was substantially justified or other circumstances make an award 10 of expenses unjust. Fed. R. Civ. P. 16(f)(2). Federal Rule of Civil Procedure 37(b)(2)(A)(vii) 11 provides that a court may issue the sanction of “treating as contempt of court the failure to obey 12 any order except an order to submit to a physical or mental examination.” 13 The rules governing Defendant’s motion for sanctions related to Plaintiff’s failure to 14 respond to discovery requests provide as follows. Federal Rule of Civil Procedure 37(a) allows a 15 party to move for an order compelling disclosure or discovery. Federal Rule of Civil Procedure 16 37(a)(5)(A) provides that, if the motion is granted, the court must, after giving an opportunity to 17 be heard, require the party whose conduct necessitated the motion to pay the movant’s reasonable 18 expenses incurred in making the motion, including attorneys’ fees. However, under Federal Rule 19 of Civil Procedure 37(a)(5)(A)(i)-(iii), the court must not order the payment if the movant filed 20 the motion before attempting in good faith to obtain the disclosure or discovery without court 21 action; the opposing party’s nondisclosure, response, or objection was substantially justified; or 22 other circumstances make an award of expenses unjust. 23 The district court has discretion to enter discovery sanctions under Rule 37. See Payne v. 24 Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997). However, that discretion is narrowed where the 25 drastic sanction of dismissal is imposed. Id. If the district court enters dismissal sanctions, the 26 losing party’s noncompliance must have been due to willfulness, fault, or bad faith. Id. The 27 Ninth Circuit has identified five factors that a district court must consider before dismissing a 1 need to manage its docket; (3) the risk of prejudice to the other party; (4) the public policy 2 favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions. 3 Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997); Stars’ Desert Inn Hotel & Country 4 Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997). 5 Here, the Court finds that sanctions are warranted, but that there are less drastic sanctions 6 than case terminating sanctions available. Plaintiff’s failure to prepare an Early Neutral 7 Evaluation statement, failure to appear at the status conference, failure to appear at the show 8 cause hearing, and failure to comply with her discovery obligations warrant a sanctions analysis 9 under Federal Rules of Civil Procedure 16 and 37. Similarly, her failure to respond to 10 Defendant’s motions constitute her consent to the Court granting them under Local Rule 7-2(d). 11 The question before the Court thus becomes what sanctions are warranted. 12 Defendant has sought two forms of sanctions: (1) its attorneys’ fees and costs; and (2) and 13 case terminating sanctions or an order compelling Plaintiff to respond to Defendant’s discovery 14 requests. Regarding the first sanction—attorneys’ fees and costs—the Court must consider 15 whether Plaintiff’s noncompliance was substantially justified or other circumstances make an 16 award of expenses unjust. See Fed. R. Civ. P. 16(f)(2); see Fed. R. Civ. P. 37(a)(5)(A); see Fed. 17 R. Civ. P. 37(b)(2)(C). However, because Plaintiff has not responded to any of Defendant’s 18 filings, the Court is without the ability to determine whether the imposition of sanctions would be 19 unjust or whether Plaintiff’s failures to participate in this case are substantially justified. This is 20 particularly true given Plaintiff’s two emails to Defendant’s counsel. So, the Court will order 21 Plaintiff to show cause in writing why the Court should not impose monetary sanctions in the 22 form of Defendants’ attorneys’ fees and costs. 23 Regarding the second sanction—dismissal or allowing the case to move forward and 24 compelling Plaintiff to respond to Defendant’s discovery requests—the Court must consider the 25 five factors outlined by the Ninth Circuit. The first factor weighs in favor of dismissal because 26 this case has stalled due to Plaintiff’s failure to engage in the Early Neutral Evaluation process 27 and the discovery process. The second factor also weighs in favor of dismissal because of the 1 in favor of dismissal because Defendant has been prejudiced by continually participating in this 2 case without reciprocity from Plaintiff. Defendant has expended attorneys’ fees in participating 3 in the status conference, the show cause hearing, and sanctions briefings necessitated by 4 Plaintiff’s failure to engage in this case. And Defendant cannot properly defend against 5 Plaintiff’s allegations if Plaintiff refuses to engage in discovery. The fourth factor weighs against 6 dismissal because, if this Court were to dismiss Plaintiff’s case, it would deprive her of the ability 7 to pursue it on the merits. 8 Ultimately, however, the fifth factor is determinative here. Although Defendant seeks 9 case terminating sanctions, it also briefed the availability of an order compelling Plaintiff to 10 respond to its discovery requests as an alternative sanction for Plaintiff’s failure to respond to 11 discovery. (ECF No. 39 at 17-19). Defendant explains: “if the Court is not inclined to dismiss 12 the action presently at a minimum the Court should: (1) compel Plaintiff to immediately respond 13 to Hilton’s written discovery requests that have been pending for four (4) months; (2) impose 14 monetary sanctions in the form of Hilton’s attorneys’ fees and costs; and (3) issue an Order to 15 Show Cause why case terminating sanctions should not be imposed for Plaintiff’s extreme 16 discovery violations.” (Id. at 19). The Court thus finds that lesser sanctions are available and that 17 they are warranted here, where the Court has no input from Plaintiff. This is particularly true 18 because it appears from Plaintiff’s emails that she may have a legitimate reason for failing to 19 fulfil her obligations in this case. The Court will thus refrain from imposing case terminating 20 sanctions at this time and will order Plaintiff to respond to Defendant’s discovery requests. The 21 Court will further order Plaintiff to show cause in writing why the Court should not impose case 22 terminating sanctions for her failure to abide by the Court’s orders regarding the Early Neutral 23 Evaluation and failure to attend the status conference and show cause hearing regarding that Early 24 Neutral Evaluation. 25 III. Extension of time. 26 Defendant moves to extend the current discovery deadlines by sixty days. (ECF No. 38). 27 Defendant explains that an extension is necessary because of Plaintiff’s failure to engage in 1 granting it. See LR 7-2(d). The Court finds that Defendant has shown good cause to extend 2 discovery and grants the motion. 3 4 IT IS THEREFORE ORDERED that Defendant’s motion to extend time (ECF No. 38) 5 is granted. The following deadlines shall govern discovery: 6 Expert disclosures: December 6, 2024 7 Rebuttal expert disclosures: January 7, 2025 8 Discovery cutoff: February 4, 2025 9 Dispositive motions: March 7, 2025 10 Pretrial order: April 7, 20253 11 IT IS FURTHER ORDERED that Defendant’s motion for sanctions (ECF No. 39) is 12 granted in part and denied in part. It is granted in part regarding Defendant’s request that the 13 Court compel Plaintiff to respond to Defendant’s discovery requests and show cause why the 14 Court should not recommend terminating sanctions. It is denied in part regarding Defendant’s 15 request that the Court dismiss the case. 16 IT IS FURTHER ORDERED that on or before November 15, 2024, Plaintiff must do 17 the following: 18 (1) show cause in writing by filing a response to this order on the docket explaining why the 19 Court should not dismiss Plaintiff’s case for her failure to comply with her Early Neutral 20 Evaluation obligations; 21 (2) show cause in writing by filing a response to this order on the docket explaining why the 22 Court should not order Plaintiff to pay Defendant’s attorneys’ fees and costs incurred in 23 preparing for and attending the Early Neutral Evaluation status conference, attending the 24 order to show cause hearing, and preparing the motion to compel briefing; and 25 26 27 3 Under Local Rule 26-1(b)(5), if dispositive motions are filed, the deadline for filing the joint pretrial order will be suspended until thirty days after decision on the dispositive motions or 1 (3) serve upon Defendant her responses to Defendant’s interrogatories and requests for 2 production of documents. 3 Plaintiff is advised that if she fails to comply with this order, the Court may 4 recommend dismissal of this case. 5 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to send Plaintiff 6 a copy of this order. 7 8 DATED: October 17, 2024 9 10 DANIEL J. ALBREGTS 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27