Harper v. Del Toro

• Court: District Court, S.D. California
• Decided: December 23, 2024
• Docket: 3:23-cv-01541
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 23CV1541 L (BLM) 11 RITA HARPER,

12 Plaintiff, REPORT AND RECOMMENDATION FOR ORDER DISMISSING ACTION 13 v.

14 CARLOS DEL TORO, in his official capacity as Secretary of the United States Department of 15 the Navy 16 Defendant. 17

18 19 This Report and Recommendation is submitted to United States District Judge M. James 20 Lorenz pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.3(f) of the United States District 21 Court for the Southern District of California. For the following reasons, the Court 22 RECOMMENDS that this action be DISMISSED. 23 FACTUAL BACKGROUND 24 The instant matter was initiated on August 21, 2023 when Plaintiff brought an action 25 against Defendant for retaliation under the Family Medical Leave Act (“FMLA”), disability 26 discrimination, and racial discrimination arising under her employment as a Special Agent for 27 the Naval Criminal Investigative Service (NCIS). ECF No. 1. Plaintiff seeks injunctive relief compensatory and punitive damages, attorneys’ fees and costs, statutory penalties, and other 1 relief as the Court may deem just and proper. Id. 2 On May 3, 2024, District Judge Lorenz granted Plaintiff’s first counsel’s, Zein E. Obagi, 3 Jr., motion to withdraw as counsel of record for Plaintiff because her counsel had been 4 suspended from the practice of law by the State Bar of California. ECF No. 17. However, Judge 5 Lorenz denied Mr. Obagi’s motion to withdraw his co-counsel, Hee J. Kim, as attorney of record 6 for Plaintiff. Id. Specifically, Judge Lorenz found that Mr. Kim failed to make the showing 7 necessary for withdrawal under California Rules of Professional Conduct. Id. Mr. Kim brought 8 a separate motion to withdraw as Plaintiff’s counsel on June 11, 2024 which was denied by 9 District Judge Lorenz on July 24, 2024. ECF Nos. 18, 22. 10 On July 15, 2024, Defendant filed an Answer to Plaintiff’s Complaint. ECF No. 20. The 11 Court issued an order setting an Early Neutral Evaluation (“ENE”) and Case Management 12 Conference (“CMC”) for August 26, 2024. ECF No. 21. In this Order, the Court ordered the 13 parties to meet and confer pursuant to FRCP 26(f) no later than August 5, 2024 and file a Joint 14 Discovery Plan no later than August 16, 2024. Id. at 5-6. The parties were also ordered to 15 exchange initial disclosures pursuant to FRCP 26(a)(1)(A-D) no later than August 19, 2024. Id. 16 at 7. 17 The parties were also ordered to submit confidential briefs in advance of the ENE via 18 email to Magistrate Judge Major’s Chambers. ECF No. 21 at 5. On August 16, 2024, Magistrate 19 Judge Major received Plaintiff’s confidential brief that was submitted by Attorney C. Benjamin 20 Graff who indicated in the brief that he had recently submitted a substitution of attorney to the 21 District Court for approval on August 15, 2024. However, this substitution of the attorney was 22 stricken by the District Court because it was lacking the client’s signature. ECF No. 25. 23 On August 23, 2024, Magistrate Judge Major emailed the log in information to all parties 24 and counsel of record for the videoconference ENE and CMC which included a courtesy copy to 25 Mr. Graff even though he had not yet properly substituted in the case. 26 On August 26, 2024, the Court conducted the ENE and present during this conference, 27 along with Defendant and their counsel, was Plaintiff, Mr. Kim and Mr. Graff. ECF No. 26. The 1 16.1(d). Id. During the CMC, the Court verbally informed the parties of the dates and deadlines 2 that would be issued in this matter. The Court also learned that Plaintiff had not provided initial 3 disclosures as required by the ENE/CMC order [ECF No. 21] and agreed to set a new deadline 4 for their production. 5 The following day, on August 27, 2024, the Court issued a Scheduling Order Regarding 6 Discovery and Other Pretrial Proceedings confirming the dates that were agreed upon during 7 the CMC. ECF No. 27. The Court ordered the following based on an agreement reached by the 8 parties during the CMC: 9 Pursuant to the agreement of the parties, Plaintiff will produce a list of medical, 10 psychological, and psychiatric providers for the last ten (10) years, along with 11 signed medical releases to the Defendant on or before September 9, 2024. In 12 addition, the parties agreed to file a joint motion for a protective order, which includes the terms of their agreement for handling confidential documents and 13 information. Plaintiff must provide a draft motion for a protective order to the 14 Defendant on or before September 6, 2024. The parties must then file their joint 15 motion with the Court on or before September 16, 2024. Plaintiff must also provide their initial disclosures pursuant to Rule 26(a)(1)(A-D) to Defendant on or 16 before September 9, 2024. 17 Id. at 1-2. 18 On September 20, 2024, Mr. Graff successfully substituted in as counsel for Plaintiff. ECF 19 No. 28. On October 1, 2024, Defendant’s counsel notified the Court that they had not received 20 any of the documents agreed to in the Scheduling Order and the dates to submit these 21 documents had passed. Counsel also informed the Court that they had sent Plaintiff’s counsel 22 a letter via email notifying him of the failure to comply with any of these deadlines on September 23 26, 2024 and requested a date to meet and confer but received no response. 24 The Court issued an Order Requesting Notice of Compliance and Requiring Personal 25 Appearance. ECF No. 30. Specifically, Plaintiff was ordered to comply with all the deadlines 26 set forth in the Scheduling Order and file a notice of compliance by October 8, 2024. Id. at 2. 27 If Plaintiff failed to file this notice of compliance, Plaintiff and Plaintiff’s counsel were ordered to 1 personally appear before the Court on October 10, 2024.1 Id. 2 Plaintiff did not file a notice of compliance. Instead, Plaintiff’s Counsel, Mr. Graff, 3 appeared without Plaintiff on October 15, 2024. ECF No. 32. Mr. Graff informed the Court that 4 he had not complied with the deadlines because the Court had not granted his request to 5 substitute in as counsel and he did not want to appear without being attorney of record. Mr. 6 Graff was apparently unaware that the Court’s docket reflected that the Court had granted his 7 substitution of attorney on September 20, 2024. ECF No. 28. Magistrate Judge Major informed 8 him that she would not impose sanctions at that time but ordered Mr. Graff to comply with the 9 requirements set forth in the Court’s Scheduling Order no later than October 21, 2024. ECF No. 10 32. The Court also warned Mr. Graff that future noncompliance would result in sanctions. Id. 11 On October 21, 2024, Mr. Graff filed a “Notice of Compliance with Order for Disclosures.” 12 ECF No. 33. In this notice, it states that “Plaintiff has provided counsel for Defendants with 13 initial disclosures in this case” and will “supplement said disclosures with additional details, 14 information and documents as such become available to Plaintiff.” Id. at 1. This document was 15 silent with regard to compliance of the other requirements and deadlines set forth in the 16 Scheduling Order. 17 On November 12, 2024, Defendant’s counsel filed a status report informing the Court 18 that Plaintiff continued to fail to provide the signed medical release or the list of all her medical 19 providers for the past ten years as set forth in the Court’s Scheduling Order. ECF No. 34. 20 Plaintiff’s initial disclosures were provided on October 21, 2024 but as set forth above, they 21 would need to be supplemented. Id. Plaintiff’s counsel represented to Defendant’s counsel that 22 they would provide the supplemental disclosures, along with the signed medical release and list 23 of providers, by October 25, 2024. However, Plaintiff failed to provide these documents on 24 October 25, 2024. Id. Plaintiff then represented to Defendant that they would provide the 25 “missing information by Friday, November 8, 2024” but “Defendant has received nothing else to 26

27 1 Due to a conflict on the Court’s calendar, the date for this appearance was continued to October 15, 1 date.” Id. 2 On November 12, 2024, this Court issued an Order Requiring Response. ECF No. 35. 3 The Court ordered Plaintiff to respond to the Defendant’s Status Report, ECF No. 34, on or 4 before November 18, 2024. Id. Plaintiff failed to do so. 5 This Court issued an Order to Show Cause why Sanctions Should not be Imposed on 6 November 20, 2024. ECF No. 36. Plaintiff and her counsel, Mr. Graff, were ordered to personally 7 appear before the Court on December 5, 2024 to show cause why sanctions should not be 8 imposed for failing to follow this Court’s Order. Id. The Court notified Plaintiff that she had 9 previously failed to appear at the Court’s OSC hearing on October 15, 2024 and “failure to appear 10 at the December 5, 2024 hearing may result in sanctions against Plaintiff and her counsel.” Id. 11 Plaintiff and her counsel failed to appear at the December 5, 2024 hearing. ECF No. 37. Neither 12 Plaintiff nor her counsel has contacted the Court since the date of the hearing and there have 13 been no filings. See Docket. 14 LEGAL STANDARD 15 A. Federal Rule of Civil Procedure 16(f) 16 Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 16(f), 17 the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at scheduling or 18 other pretrial conference; (B) is substantially unprepared to participate—or does not participate in good faith in the conference; or (C) fails to obey a scheduling or 19 other pretrial order. 20 Fed. R. Civ. P. 16(f)(1). “Instead of or in addition to any other sanction, the court must order 21 the party, its attorney, or both to pay the reasonable expenses—including attorney’s fees— 22 incurred because of any noncompliance with this rule, unless the noncompliance was 23 substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. 24 P. 16(f)(2). 25 B. Federal Rule of Civil Procedure 37(b) 26 When a party fails to obey a discovery order, including an order under Fed. R. Civ. P. 27 26(f), Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi) allows for various sanctions, including: 1 (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; 2 (ii) prohibiting the disobedient party from supporting or opposing designated 3 claims or defenses, or from introducing designated matters in evidence; 4 (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; 5 (v) dismissing the action or proceeding in whole or in part; 6 (vi) rendering a default judgment against the disobedient party; or 7 (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. 8 9 Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). 10 “[B]ecause dismissal is so harsh a penalty, it should be imposed only in extreme 11 circumstances.” Meeks v. Nunez, 2017 WL 908733, at *10 (S.D. Cal. Mar. 8, 2017) (quoting 12 Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983)). For the imposition 13 of such a severe sanction, the conduct of the disobedient party must be “due to willfulness, bad 14 faith, or fault of the party.” Id. (quoting United States ex rel. Wiltec Guam, Inc. v. Kahaluu 15 Constr. Co., 857 F.2d 600, 603 (9th Cir. 1988) (citation omitted). 16 The Ninth Circuit has set forth five factors to be considered by the court in selecting the 17 appropriate sanction: 18 (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) 19 the public policy favoring disposition of cases on their merits; and (5) the 20 availability of less drastic sanctions. 21 Hullinger v. Anand, 2016 WL 7444620, at *8 (C.D. Cal. Aug. 19, 2016) (quoting Valley Engineers 22 Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir. 1998)). “The Ninth Circuit has 23 held that a party’s failure to produce documents as ordered is considered sufficient prejudice to 24 establish sanctionable conduct.” Id. (quoting Apple Inc. v. Samsung Elecs. Co., Ltd., 2012 WL 25 2862613, at *1-2 (N.D. Cal. July 11, 2012)). When considering evidentiary, issue or terminating 26 sanctions, factors three and five “become particularly important.” Id. 27 Where a court order is violated, the first two factors support terminating sanctions while 1 the fourth factor, the public policy favoring disposition of the cases, does not support dismissal. 2 Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990); see also Ferdik v. Bonzelet, 3 963 F.2d 1258, 1261 (9th Cir. 1991). Therefore, the third and fifth factors are ultimately 4 determinative of the result. Adriana Int'l Corp., 913 F.2d at 1412. 5 DISCUSSION 6 The Court and defense counsel have given Plaintiff numerous opportunities to comply 7 with the Court’s Scheduling Order and to provide the discovery agreed to by the parties. 8 Plaintiff’s counsel represented to defense counsel in writing on multiple occasions that he would 9 provide the documentation ordered in the Court’s Scheduling Order but failed to do so. Plaintiff’s 10 counsel also appeared in person before this Court and represented that he would comply with 11 the Court’s Scheduling Order but failed to do so. Plaintiff was ordered to appear twice before 12 the Court but failed to appear both times. Plaintiff’s counsel also failed to appear before the 13 Court when ordered to do so. 14 Although this case has been pending for almost a year and a half, other than providing 15 incomplete initial disclosures, Plaintiff has not provided any other discovery to Defendant and 16 has not conducted any discovery or taken any other action to move this case toward resolution. 17 As discussed in more detail below, the facts of this case warrant dismissal. 18 A. Plaintiff Violated the Court’s Orders 19 As set forth above, on August 27, 2024, the Court issued a Scheduling Order Regarding 20 Discovery and Other Pretrial Proceedings. ECF No. 27. Because Plaintiff did not comply with 21 the Court’s first order requiring the exchange of initial disclosures [ECF No. 21], and based upon 22 the agreement reached by the parties during the CMC, the Court issued the following order: 23 24 Pursuant to the agreement of the parties, Plaintiff will produce a list of medical, psychological, and psychiatric providers for the last ten (10) years, along with signed 25 medical releases to the Defendant on or before September 9, 2024. In addition, 26 the parties agreed to file a joint motion for a protective order, which includes the 27 terms of their agreement for handling confidential documents and information. Plaintiff must provide a draft motion for a protective order to the Defendant on or 1 before September 6, 2024. The parties must then file their joint motion with the Court on or before September 16, 2024. Plaintiff must also provide their initial 2 disclosures pursuant to Rule 26(a)(1)(A-D) to Defendant on or before September 9, 3 2024. 4 ECF No. 27 at 1-2. 5 After those deadlines passed, defense counsel notified the Court that Plaintiff had not 6 complied with the Court’s Order. The Court issued an order allowing Plaintiff additional time to 7 comply and to notify the Court of their compliance by October 8, 2024. ECF No. 30. Plaintiff 8 and her counsel were ordered to personally appear if these deadlines were not met. Id. Plaintiff 9 did not meet these deadlines and instead, her counsel appeared before the Court on October 10 15, 2024. ECF No. 32. Plaintiff’s counsel did not explain why Plaintiff did not appear as ordered 11 by the Court but he did inform the Court he did not believe that he was formally substituted in 12 as counsel of record. This statement was inaccurate as District Judge Lorenz had issued an 13 order three weeks prior to this hearing granting Plaintiff’s request for substitution of attorney 14 and there is no evidence in the Court’s docket that Plaintiff’s new counsel, Mr. Graff, failed to 15 receive this order. ECF No. 28. Regardless of Mr. Graff’s confusion, this Court ordered Plaintiff’s 16 counsel to comply with the Court’s Scheduling Order no later than October 21, 2024. Id. 17 Plaintiff only partially complied with this Order when she filed a notice of compliance that 18 she had served incomplete initial disclosures but ignored all the other deadlines that had been 19 set. ECF No. 33. The Court issued yet another order requiring Plaintiff to comply with the 20 Scheduling Order which was, again, ignored by Plaintiff. ECF No. 35. The Court issued another 21 Order to show cause why sanctions should not be imposed for failing to comply with a Court 22 Order, requiring Plaintiff and her counsel to personally appear before the Court on December 5, 23 2024. ECF No. 36. Plaintiff and her counsel failed to appear and have made no attempts to 24 contact this Court to date. 25 The Court therefore finds that Plaintiff has repeatedly failed to comply with the Court’s 26 orders. 27 /// 1 B. Plaintiff’s Violation of the Court’s Order Was Due to Willfulness, Fault, or 2 Bad Faith 3 This factor does not require a finding of wrongful intent or any particular mental state. 4 See United States v. Lee, 2016 WL 11281164, at *2 (S.D. Cal. Dec. 6, 2016). “Disobedient 5 conduct not shown to be outside the control of the litigant is sufficient to demonstrate 6 willfulness, bad faith, or fault.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994) 7 (citing Henry v. Gill Indus., 983 F.2d 943, 948 (9th Cir. 1993). “A single willful violation may 8 suffice depending on the circumstances.” United States v. Approximately $30,000.00 in U.S. 9 Currency, 2015 WL 5097707, at *8 (E.D. Cal. Aug. 28, 2015) (citing Valley Engineers, Inc., 158 10 F.3d at 1056, cert. denied, 526 U.S. 1064 (1999)) and Ortiz–Rivera v. Municipal Government of 11 Toa Alta, 214 F.R.D. 51, 57 (D.P.R.2003) (disobedience of court orders in and of itself constitutes 12 extreme misconduct and warrants dismissal)). The Ninth Circuit has “specifically encouraged 13 dismissal, however, where the district court determines ‘that counsel or a party has acted willfully 14 or in bad faith in failing to comply with rules of discovery or with court orders enforcing the rules 15 or in flagrant disregard of those rules or orders.’” Meeks v. Nunez, 2017 WL 908733, at *6 (S.D. 16 Cal. Mar. 8, 2017) (citing Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (quoting G–K 17 Props. v. Redevelopment Agency, 577 F.2d 645, 647 (9th Cir. 1978)) (citing Nat'l Hockey League 18 v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976)). 19 The evidence clearly establishes that Plaintiff acted, or more accurately failed to act, 20 knowingly, intentionally, and willfully. As discussed above, the Court’s August 2024 Scheduling 21 Order set forth dates and requirements agreed upon by all parties who were present at the ENE, 22 including Plaintiff and her new counsel Mr. Graff. It is undisputed that Plaintiff and her counsel 23 willingly agreed to provide the information, knew the specific information that was required and 24 the dates by which it must be provided, and were given numerous opportunities to provide this 25 information, and yet failed to do so. Plaintiff has never informed the Court of any barrier to 26 providing the information directed in the Court’s Order and has failed to appear on two separate 27 occasions in violation of the Court’s Orders. 1 Scheduling Order and subsequent orders and failing to appear before the Court was done 2 knowingly, intentionally, and willfully. 3 C. Factors for Dismissal 4 As discussed in detail below, all of the factors identified by the Ninth Circuit support the 5 Court’s decision to recommend dismissal of this case. See Valley Engineers, 158 F.3d at 1057; 6 Hullinger, 2016 WL 7444620, at *8. 7 1. Public Interest in Expeditious Resolution of Litigation & The Court’s Need to 8 Manage its Dockets 9 The first two factors focus on the need to move cases toward timely resolution. Here, 10 Plaintiff filed this action almost a year and a half ago and yet she has not taken any action to 11 move this case toward resolution. She has not conducted discovery and she has not provided 12 the initial discovery required in the Court’s Scheduling Order. Plaintiff’s behavior negatively 13 impacts both the public’s interest in the expeditious resolution of litigation and the Court’s need 14 to manage its docket. Both of these facts weigh in favor of dismissal. 15 2. The Risk of Prejudice to the Party Seeking Sanctions 16 The consideration of prejudice is an important factor in deciding a motion for a dismissal 17 sanction and should receive more weight than the other factors. Meritage Homeowners' Ass'n 18 v. Bank of New York Mellon, 2017 WL 9471669, at *4 (D. Or. Dec. 3, 2017) (citing Henry, 983 19 F.2d at 948 and Banga v. Experian Info. Solutions, 2009 WL 2407419, *1 (N.D. Cal. Aug. 4, 20 2009)). “A defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to 21 go to trial or threaten to interfere with the rightful decision of the case.” In re 22 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 23 (quoting Adriana Int'l Corp., 913 F.2d at 1412 and (citing Malone v. U.S. Postal Serv., 833 F.2d 24 128, 131 (9th Cir. 1987) and In re Eisen, 31 F.3d 1447, 1453 (9th Cir. 1994)). Failing to produce 25 documents as ordered is considered sufficient prejudice. Id. (citing Adriana, 913 F.2d at 1412). 26 “Prejudice normally consists of loss of evidence and memory, it may also consist of costs or 27 burdens of litigation, although it may not consist of the mere pendency of the lawsuit itself.” Id. 1 “When the spoiling party's actions force the non-spoiling party ‘to rely on incomplete and spotty 2 evidence’ at trial, dismissal is proper.” Meritage Homeowners' Ass'n, 2017 WL 9471669, at *4 3 (quoting Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006)). 4 Plaintiff’s inaction in this case has prejudiced Defendant. Plaintiff seeks to hold Defendant 5 liable in this matter, in part, due to alleged retaliation and discrimination based on her alleged 6 mental and physical disabilities. See generally Compl., ECF No. 1. The Court ordered Plaintiff 7 to provide medical releases and a list of her providers to the Defendant in order for the 8 Defendant to obtain the medical documentation relevant to her claims. Plaintiff has continuously 9 failed to provide this discovery to Defendant and has failed to provide any reason or excuse for 10 this failure. Defendant’s counsel has made repeated attempts to reach out to Plaintiff and has 11 appeared at both in person hearings held by this Court, including the most recent hearing at 12 which neither Plaintiff nor Plaintiff’s counsel appeared. As a result, Defendant’s ability to 13 prepare a dispositive motion or go to trial has been significantly impaired. See Mendia v. Garcia, 14 2018 WL 509977, at *4 (N.D. Cal. Jan. 23, 2018) (finding that plaintiff's conduct prejudiced 15 defendants where “Defendants have been forced to expend time and resources attempting to 16 secure [plaintiff’s] cooperation by filing motions (including the instant Motion) and attending in- 17 person meet and confer sessions, a motion hearing, and a deposition where Plaintiff did not to 18 appear. Plaintiff's refusal to produce discovery has also impaired Defendants' ability to 19 adequately defend against Plaintiff's claims.”). This factor, therefore, weighs in favor of 20 dismissal. 21 3. Public Policy Favoring Disposition of Cases on Their Merits 22 While public policy favors disposition of cases on their merits, “a case that is stalled or 23 unreasonably delayed by a party's failure to comply with deadlines and discovery obligations 24 cannot move forward toward resolution on the merits.” In re Phenylpropanolamine, 460 F.3d 25 at 1228. As such, this factor “‘lends little support’ to a party whose responsibility it is to move 26 a case toward disposition on the merits but whose conduct impedes progress in that direction.” 27 Id. (quoting In re the EXXON VALDEZ, 102 F.3d 429, 433 (9th Cir. 1996) (noting that plaintiffs' 1 31 F.3d at 1454 (giving weight to the plaintiff's failure to specify why it is important that his 2 actions be resolved on their merits); Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th 3 Cir. 1991) (observing that it is the responsibility of the moving party to move toward disposition 4 on the merits). 5 Plaintiff has made no effort to move this case towards resolution on the merits and has, 6 in fact, actively prevented the case from moving in that direction by repeatedly failing to provide 7 the required discovery and to respond to Court orders. Accordingly, this factor weighs in favor 8 of a dismissal sanction. 9 4. Availability of Less Drastic Sanctions 10 “[B]ecause dismissal is so harsh a penalty, it should be imposed only in extreme 11 circumstances.” Meeks, 2017 WL 908733, at *10. Before imposing a dismissal sanction, a court 12 must consider the “impact of the sanction and the adequacy of less drastic sanctions.” U.S. for 13 Use & Ben. of Wiltec Guam, Inc. v. Kahaluu Const. Co., 857 F.2d 600, 604 (9th Cir. 1988) 14 (quoting Malone, 833 F.2d at 131 and United States v. Nat'l Med. Enter., 792 F.2d 906, 912 (9th 15 Cir. 1986)). In Kahaluu Constr. Co., the Ninth Circuit opined that “the district court is generally 16 required to discuss alternative sanctions; but, in exceptional cases, where it is clear that no other 17 alternative would have been reasonable, we may affirm a dismissal or default judgment despite 18 the absence of such a discussion.” Id. (citing Halaco Eng'g Co. v. Costle, 843 F.2d 376, 381 (9th 19 Cir. 1998)) (“consideration of less severe penalties must be a reasonable explanation of possible 20 and meaningful alternatives.”). If a court fails to warn a claimant “explicitly or implicitly that 21 their procedural lapses might result in a judgment against them” then it places that court’s order 22 of dismissal “in serious jeopardy.” Id. at 605. In sum, a “three-part analysis determines whether 23 a court properly considered the adequacy of less drastic sanctions: (1) did the court explicitly 24 discuss the feasibility of less drastic sanctions and explain why alternative sanctions would be 25 inappropriate, (2) did the court implement alternative sanctions before ordering dismissal, and 26 (3) did the court warn the party of the possibility of dismissal before actually ordering dismissal?” 27 U.S. Equal Emp't Opportunity Com'n, 2009 WL 1287757, at *4 (quoting Adriana Int'l. Corp., 913 1 The Court has considered and rejected the possibility of lesser sanctions. Initially, the 2 Court notes that it provided Plaintiff with several opportunities to provide the required 3 documents and information and to comply with the Court’s orders. Plaintiff failed to do so. The 4 Court also warned Plaintiff that failure to comply with the Court’s orders would result in 5 sanctions. Despite the Court’s efforts and warnings, Plaintiff did not comply with the orders 6 requiring the production of documents and information and then ultimately failed to appear in 7 court as required and failed respond in any way to the Court’s orders. As a result, and for the 8 following reasons, the Court finds that the only appropriate sanction is termination of the 9 litigation. The Court considered imposing monetary sanctions but the Court has no reason to 10 believe that the imposition of monetary sanctions would compel Plaintiff to participate in 11 discovery or that Plaintiff would pay the sanctions, especially since Plaintiff and Plaintiff’s counsel 12 completely ignored the Court’s last order and failed to appear in court as required. The Court 13 also has considered evidentiary sanctions but finds they are unlikely to be successful given the 14 fact that Plaintiff has refused to participate in the discovery process. In addition, evidentiary 15 sanctions are most appropriate when a party fails to provide one specific type of discovery. See 16 Chambers v. Janssen Pharmaceuticals, Inc,2018 WL 3706695, at *6 (S.D. Cal. Aug. 3, 2018). 17 In such a situation, a court can prohibit the introduction of certain evidence or instruct a jury 18 that a specific fact is proven or that the jury can consider a party’s destruction of evidence. 19 Here, on the other hand, Plaintiff has not provided any meaningful discovery so there is no 20 appropriate limited jury instruction. Moreover, given Plaintiff’s almost complete failure to 21 participate in the court process, it is unlikely that Plaintiff would conduct discovery or appear for 22 a trial yet Defendants would be required to do so to their further detriment. As a result, the 23 Court finds that this factor weighs in favor of a dismissal sanction. 24 Given Plaintiff’s failure to participate in discovery, and to respond to or comply with the 25 Court’s orders, and after considering all of the required factors, the Court RECOMMENDS 26 dismissal of the instant case. 27 CONCLUSION AND RECOMMENDATION 1 an Order: (1) approving and adopting this Report and Recommendation; and (2) dismissing 2 || this action. 3 IT IS HEREBY ORDERED that any written objections to this Report must be filed with 4 || the Court and served on all parties no later than January 10, 2025. The document should be 5 || captioned “Objections to Report and Recommendation.” 6 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court 7 ||and served on all parties no later than January 17, 2025. 8 Plaintiff is warned that failure to respond to this order may result in the dismissal of this 9 || case and other sanctions. 10 IT IS SO ORDERED. 11 12 ||Dated: 12/23/2024 Sy be He ol 13 Hon. Barbara L. Major 4 United States Maqistrate Judde

15 16 17 18 19 20 21 22 23 24 25 26 27 28 14