DuBose v. Hilton Grand Vacations Club, LLC

• Court: District Court, D. Nevada
• Decided: January 10, 2025
• Docket: 2:24-cv-00648
• Status: Unknown

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 Report and Recommendation v. 8 Hilton Grand Vacations Club, LLC, 9 Defendant. 10 11 This is an employment discrimination case arising out of Plaintiff’s employment with 12 Defendant Hilton Grand Vacations Club, LLC. (ECF No. 1-3 at 5-6). Plaintiff, who is 13 proceeding pro se, has disengaged from this case, resulting in the Court granting in part 14 Defendant’s motion for sanctions in the form of attorneys’ fees and dismissal. (ECF No. 42). In 15 granting that motion for sanctions in part, the Court declined to enter sanctions, but ordered 16 Plaintiff to show cause why the Court should not impose the sanctions Defendant requested. 17 (Id.). Plaintiff failed to respond to the order to show cause. The Court thus recommends the 18 dismissal of this action. 19 I. Background. 20 Defendant removed this action on April 3, 2024. (ECF No. 1). The case was then 21 scheduled for an Early Neutral Evaluation (“ENE”) set to take place on July 9, 2024, in front of 22 the Honorable Magistrate Judge Maximiliano D. Couvillier. (ECF No. 7). Plaintiff’s counsel 23 withdrew their representation of her on June 20, 2024. (ECF No. 24). 24 On July 3, 2024, Judge Couvillier entered a minute order noting that Plaintiff had failed to 25 submit her confidential settlement statement. (ECF No. 28). As a result, Judge Couvillier 26 vacated the July 9, 2024, Early Neutral Evaluation and converted it to a status hearing. (Id.). 27 Plaintiff did not appear for the status hearing. (ECF No. 29). But later that evening, Plaintiff Currently, I’m with child and expecting my delivery very soon. I 1 do apologize for my lateness but my child will be delivered very 2 soon. It was a happy surprise as I didn’t find out until later on which is why I’ve been unavailable. 3 I do need an extension on the interrogatories and to seek counsel. 4 Can we extend this until the end of October if possible? 5 Again, I apologize for my late response but I’m at the doctor most of the time with the baby being due soon. 6 Please do let me know if we can extend it and I’ll put you in touch 7 with my new counsel once I have obtained legal representation. 8 9 (ECF No. 38-3 at 3). 10 Because Plaintiff did not appear at the July 9, 2024 status conference, Judge Couvillier 11 entered an order for Plaintiff to appear at a hearing on August 8, 2024 to show cause why 12 sanctions should not issue. (ECF No. 30). A few hours before the hearing, Plaintiff responded to 13 an email from Defendant providing her with Defendant’s notice of non-opposition that it filed 14 related to Defendant’s motion to extend time (ECF Nos. 32, 33). (ECF No. 36-3 at 2). In her 15 email, Plaintiff stated: 16 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 17 today. 18 The motion reads as if I’m evading the court when in fact I was a 19 High Risk Pregnancy. Nor do I have clearance from my doctor to do anything but heal for the next 6-8 weeks. 20 Please advise and amend the motion to include my reasoning of why 21 I am unable to show up in court due to my child’s birth. Also, my new council [sic] hasn’t been assigned yet but I’ll put them in touch 22 with you once it is finalized. 23 Again, I’m not ignoring you but I’m healing from a serious surgery 24 to get my child delivered safely along with assigning new council [sic]. 25 26 27 (ECF No. 36-3 at 2).1 1 2 Plaintiff failed to appear at the show cause hearing. (ECF No. 35). Judge Couvillier thus 3 found sanctions to be appropriate and ordered Defendant to file a brief regarding Federal Rule of 4 Civil Procedure 16(f) sanctions in response to Plaintiff’s non-compliance with the settlement 5 conference orders and process. (Id.). Defendant filed that brief, requesting case terminating or 6 monetary sanctions under Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A)(vii), on August 7 29, 2024. (ECF No. 36). Plaintiff did not respond to that brief. (ECF No. 37). 8 On September 16, 2024, Defendant filed a motion to extend time, seeking to extend 9 discovery deadlines by sixty days due to Plaintiff’s failure to respond to Defendant’s discovery 10 requests. (ECF No. 38). Defendant also moved for case terminating sanctions or to compel 11 Plaintiff to respond to its discovery requests under Federal Rule of Civil Procedure 37 for 12 Plaintiff’s failure to respond to Defendant’s discovery requests. (ECF No. 39). Plaintiff did not 13 respond to either motion. (ECF Nos. 40, 41). 14 On October 17, 2024, the Court granted Defendant’s motion to extend time and granted in 15 part and denied in part Defendant’s motion for sanctions. (ECF No. 42). In its sanction motion, 16 Defendant sought case terminating sanctions and sanctions in the form of its attorneys’ fees and 17 costs incurred in preparing for and attending the Early Neutral Evaluation status conference, 18 attending the order to show cause hearing, and preparing the motion to compel briefing. (ECF 19 No. 39). In addressing Defendant’s motions, the Court explained that Plaintiff’s failure to 20 respond to Defendant’s sanctions motion made it difficult for the Court to determine what 21 sanctions were appropriate. (ECF No. 42 at 5-6). So, the Court refrained from imposing case 22 terminating sanctions and imposing attorney fee sanctions and ordered Plaintiff to show cause in 23 writing why the Court should not dismiss Plaintiff’s case and order Plaintiff to pay Defendant’s 24 attorneys’ fees and costs. (ECF No. 42). The Court also ordered Plaintiff to provide her 25 responses to Defendant’s interrogatories and requests for production of documents. (Id. at 8). 26

27 1 Other than these two emails, Defendant explains that Plaintiff has not responded to its counsel’s 1 The Court set November 15, 2024, as the deadline by which Plaintiff must file her responses to 2 the order to show cause and to provide her responses to discovery requests to Defendant. (Id. at 3 7-8). The Court also admonished Plaintiff that “if she fails to comply with this order, the Court 4 may recommend dismissal of this case.” (Id.). The Court also sent Plaintiff a copy of the order. 5 (Id.). To date, Plaintiff has not filed anything further in this action. 6 II. Legal Standard. 7 In its original motion for sanctions, Defendant moved for case terminating or monetary 8 sanctions under Federal Rules of Civil Procedure 16(f) and 37(b)(2)(A)(vii) for Plaintiff’s failure 9 to attend the Early Neutral Evaluation and for Plaintiff’s failure to obey the Court’s orders related 10 to that Early Neutral Evaluation. (ECF No. 36). Defendant also moved for case terminating 11 sanctions or to compel Plaintiff to respond to discovery under Federal Rule of Civil Procedure 37 12 for Plaintiff’s failure to respond to Defendant’s discovery requests. (ECF No. 39). 13 The rules governing Defendant’s request for sanctions for Plaintiff’s failure to appear at 14 the Early Neutral Evaluation provide as follows. Federal Rule of Civil Procedure 16(f) provides 15 that a court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii) if a 16 party fails to appear at a pretrial conference or fails to obey a scheduling or other pretrial order. 17 Fed. R. Civ. P. 16(f)(1)(A), (C). One of the sanctions available under Rule 37(b)(2)(A) is 18 dismissing the action. Fed. R. Civ. P. 37(b)(2)(A)(v). Federal Rule of Civil Procedure 16 also 19 provides that, instead of or in addition to any other sanction, the Court must order the party to pay 20 the reasonable fees—including the attorneys’ fees—incurred because of any noncompliance with 21 the rule, unless the noncompliance was substantially justified or other circumstances make an 22 award of expenses unjust. Fed. R. Civ. P. 16(f)(2). Federal Rule of Civil Procedure 23 37(b)(2)(A)(vii) provides that a court may issue the sanction of “treating as contempt of court the 24 failure to obey any order except an order to submit to a physical or mental examination.” 25 The rules governing Defendant’s request for sanctions related to Plaintiff’s failure to 26 respond to discovery requests provide as follows. Federal Rule of Civil Procedure 37(a) allows a 27 party to move for an order compelling disclosure or discovery. Federal Rule of Civil Procedure 1 be heard, require the party whose conduct necessitated the motion to pay the movant’s reasonable 2 expenses incurred in making the motion, including attorneys’ fees. However, under Federal Rule 3 of Civil Procedure 37(a)(5)(A)(i)-(iii), the court must not order the payment if the movant filed 4 the motion before attempting in good faith to obtain the disclosure or discovery without court 5 action; the opposing party’s nondisclosure, response, or objection was substantially justified; or 6 other circumstances make an award of expenses unjust. 7 The district court has discretion to enter discovery sanctions under Rule 37. See Payne v. 8 Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997). However, that discretion is narrowed where the 9 drastic sanction of dismissal is imposed. Id. If the district court enters dismissal sanctions, the 10 losing party’s noncompliance must have been due to willfulness, fault, or bad faith. Id. The 11 Ninth Circuit has identified five factors that a district court must consider before dismissing a 12 case as a sanction: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s 13 need to manage its docket; (3) the risk of prejudice to the other party; (4) the public policy 14 favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions. 15 Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997); Stars’ Desert Inn Hotel & Country 16 Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997). 17 III. Discussion. 18 Here, the Court finds that attorneys’ fees and case terminating sanctions are warranted. 19 Plaintiff’s repeated failures to participate in this case warrant a sanctions analysis under Federal 20 Rules of Civil Procedure 16 and 37. Regarding attorneys’ fees and costs, the Court must consider 21 whether Plaintiff’s noncompliance was substantially justified, or other circumstances make an 22 award of expenses unjust. See Fed. R. Civ. P. 16(f)(2); see Fed. R. Civ. P. 37(a)(5)(A); see Fed. 23 R. Civ. P. 37(b)(2)(C). Although Plaintiff has not explained her absence from the ENE-turned- 24 status-conference and related hearings to the Court, she has provided some explanation in emails 25 to Defendant that the Court finds to make an award of expenses unjust. From her emails, it 26 appears that Plaintiff was physically unable to attend the ENE-turned-status-conference and later 27 show cause hearing. While Plaintiff failed to communicate with the Court or communicate 1 declines to recommend monetary sanctions related to the ENE and show cause hearing under 2 Federal Rule of Civil Procedure 16(f)(2). 3 On the other hand, Plaintiff has failed to explain why she has not responded to 4 Defendant’s discovery requests. These requests were due since June 17, 2024, and in her email to 5 Defendant, Plaintiff requested until October to respond. Defendant was ultimately forced to 6 move to compel these responses in late September (ECF No. 39) and the Court granted that 7 motion in October (ECF No. 42), giving Plaintiff even longer—until November 15, 2024—to 8 respond. Yet Plaintiff still failed to respond, and provided no explanation for her prolonged 9 failure to do so. Because the Court has granted Defendant’s motion to compel and has given 10 Plaintiff an opportunity to be heard, the Court recommends requiring Plaintiff to pay Defendant’s 11 reasonable expenses incurred in bringing its motion to compel (ECF No. 39). Fed. R. Civ. P. 12 37(a)(5)(A). 13 Regarding dismissal, the five factors outlined by the Ninth Circuit weigh in favor of 14 dismissing this case. The first factor weighs in favor of dismissal because the case has stalled due 15 to Plaintiff’s failure to engage in the case. The second factor also weighs in favor of dismissal 16 because of the Court’s involvement in this case that Plaintiff’s absence has necessitated. The 17 third factor weighs in favor of dismissal because Defendant has been prejudiced by continually 18 participating in this case without reciprocity from Plaintiff. Defendant has expended attorneys’ 19 fees in participating in the status conference, the show cause hearing, and sanctions briefings 20 necessitated by Plaintiff’s failure to engage in this case. And Defendant cannot properly defend 21 against Plaintiff’s allegations if Plaintiff refuses to engage in discovery. The fourth factor weighs 22 against dismissal, but only slightly, because although dismissing the case would deprive Plaintiff 23 of the ability to pursue it on the merits, Plaintiff appears to have no interest in pursuing the merits 24 of her case. The fifth factor also weighs in favor of dismissal because, as demonstrated by 25 Plaintiff’s repeated failures to comply with Court orders, and recent failure to respond to the 26 Court’s order to show cause, no lesser sanctions would suffice. The Court thus recommends 27 imposing sanctions in the form of Defendants’ attorneys fees and costs and dismissing Plaintiff’s 1 IT IS THEREFORE RECOMMENDED that sanctions be imposed against Plaintiff in 2 the form of Defendant’s attorneys’ fees and costs incurred in preparing the motion to compel. 3 IT IS FURTHER RECOMMENDED that Plaintiff’s case be dismissed without 4 prejudice. The Clerk of Court is kindly directed to send a copy of this recommendation to 5 Plaintiff. 6 7 NOTICE 8 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 9 in writing and filed with the Clerk of the Court within (14) days after service of this Notice. The 10 Supreme Court has held that the courts of appeal may determine that an appeal has been waived 11 due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 12 (1985), reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that (1) failure to 13 file objections within the specified time and (2) failure to properly address and brief the 14 objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 15 issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); 16 Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 17 18 DATED: January 10, 2025 19 20 DANIEL J. ALBREGTS 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27