Maric v. Alvarado

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 DENNIS MARIC, Case No. 1:12-cv-00102-SKO

11 Plaintiff, ORDER DISMISSING ACTION WITH PREJUDICE AND DIRECTING CLERK OF 12 v. COURT TO ENTER JUDGMENT

13 ALVARADO, et al., (Doc. 169)

14 Defendants. _____________________________________/ 15 16 I. Background 17 Plaintiff Dennis Maric filed this civil rights action against Defendants pursuant to 42 U.S.C. 18 § 1983 on January 23, 2012. (Doc. 1.) Plaintiff filed the operative first amended complaint (FAC) 19 on May 9, 2012. (Doc. 5.) On January 23, 2014, the previously assigned district judge granted 20 Defendants’ motion for summary judgment on certain claims and denied the motion as to other 21 claims. (See Doc. 55.) The parties later consented to the jurisdiction of a U.S. magistrate judge, 22 (see Docs. 65, 66, 67, 60), and the case proceeded to trial before the undersigned on April 15, 23 2014, on claims of excessive force and assault and battery. (Doc. 96.) On April 16, 2014, the jury 24 returned a verdict for Defendants. (Doc. 101.) 25 Plaintiff filed a notice of appeal on May 1, 2014. (Doc. 106.) On September 6, 2018, the 26 U.S. Court of Appeals for the Ninth Circuit reversed the previously assigned district judge’s 27 summary judgment order and remanded certain claims for trial. Maric v. Alvarado, 748 F. App’x 28 747, 748 (9th Cir. 2018). On January 25, 2019, the Court entered a scheduling order. (Doc. 133.) 1 On June 6, 2019, Defendants filed a motion to compel discovery and for sanctions, stating that 2 Plaintiff had completely failed to respond to certain written discovery. (Doc. 135.) Plaintiff failed 3 to oppose the motion, and on June 26, 2019, the Court granted Defendants’ motion to compel and 4 awarded attorney’s fees in the amount of $567. (Doc. 140.) 5 On June 27, 2019, Defendants filed an “Ex Parte Application for Order Shortening Time to 6 Hear Defendants’ Motion to Compel Plaintiff to Submit to an Oral Deposition and Request for 7 Monetary Sanctions” stating that Plaintiff failed to cooperate in setting his deposition. (Doc. 141.) 8 On June 28, 2019, following a telephonic conference with the parties, the Court directed Plaintiff 9 to appear for his deposition on July 2, 2019, and denied Defendants’ request for monetary sanctions 10 without prejudice. (Doc. 142.) On July 10, 2019, Defendant Maldonado filed a motion for an 11 order compelling Plaintiff to comply with the June 26, 2019 Order, stating that Plaintiff had failed 12 to serve discovery in compliance with the order and failed to pay the attorney’s fee amount. (Doc. 13 143.) On August 7, 2019, Plaintiff failed to appear at the hearing on Defendant Maldonado’s 14 motion. (See Doc. 145.) On August 8, 2019, the Court granted Defendant Maldonado’s motion 15 and again directed Plaintiff to serve responses to the outstanding discovery requests and pay 16 Defendant Maldonado’s counsel $1,512 in attorney’s fees. (Doc. 147.) The Court denied without 17 prejudice Defendant Maldonado’s request for terminating sanctions, but warned Plaintiff that “any 18 future failure to abide by his discovery obligations, any future refusal to participate in 19 discovery, or any future failure to obey an order of this Court WILL result in the 20 consideration of terminating sanctions upon request.” (Id. at 5) (emphasis in original). 21 On August 30, 2019, Defendant Maldonado filed a motion to compel Plaintiff to comply 22 with the August 8, 2019 Order and a request for monetary and terminating sanctions. (Doc. 148.) 23 On September 18, 2019, Defendants’ counsel and Plaintiff appeared for a hearing on the motion. 24 (See Doc. 151.) Following the hearing, the Court ordered Plaintiff again to produce the outstanding 25 discovery and ordered Plaintiff to pay attorney’s fees to Defendant Maldonado in the amount of 26 $1,512, as previously ordered, in installment payments of $200 per month, beginning October 1, 27 2019. (Id.) The Court denied Defendant Maldonado’s second request for terminating sanctions 28 without prejudice. (Id.) The Court also directed Plaintiff to “endeavor to check his post office 1 box often in order to ensure he receives correspondence from the Court and defense counsel,” and 2 cautioned Plaintiff that “any future failure to abide by his discovery obligations, any future refusal 3 to participate in discovery, or any future failure to obey an order of this Court WILL result in the 4 consideration of terminating sanctions upon request.” (Id.) 5 On October 22, 2019, Defendants moved for summary judgment. (Doc. 152.) Plaintiff 6 failed to file an opposition within the time prescribed by Local Rule 230(g), and upon review of 7 the motion, the Court deemed the matter suitable for decision on the papers and vacated the 8 November 27, 2019 hearing on the motion. (See Doc. 156.) On November 25, 2019, Plaintiff 9 filed a request for continuance of “all court dates,” which Defendants opposed. (Docs. 157, 158, 10 159, 160.) Over Defendants’ objections, the Court granted Plaintiff’s request and re-set the hearing 11 on Defendants’ motion for summary judgment for January 29, 2020, allowed Plaintiff until January 12 15, 2020 to file an opposition to the motion, and continued the pretrial conference from January 13 22, 2020, to March 25, 2020, and the jury trial date from March 17, 2020, to May 27, 2020. (Doc. 14 161.) Plaintiff again failed to file an opposition to the motion for summary judgment, and on 15 January 24, 2020, the Court vacated the January 29, 2020, hearing. (Doc. 162.) On February 27, 16 2020, the Court denied Defendants’ motion for summary judgment. (Doc. 163.) 17 On March 18, 2020, Defendants filed a unilateral “Pre-Trial Conference Statement,” (Doc. 18 164), and “Declaration of Ashley N. Reyes Regarding Inability to File Joint Pretrial Statement,” 19 (Doc. 165). Defendants represented that they attempted to meet and confer with Plaintiff on 20 numerous occasions to prepare the joint pretrial statement required by Local Rule 281(a)(2), but 21 Plaintiff did not respond or otherwise communicate with Defendants’ counsel. (Id. at 1–2.) The 22 Court therefore continued the pretrial conference to May 13, 2020, and the trial date to July 7, 23 2020, and directed Plaintiff to show cause by April 20, 2020, why the case should not be dismissed. 24 (Doc. 166.) The Court warned Plaintiff that “failure to respond to this order may result in the 25 Court vacating the pretrial conference and trial dates and may result in sanctions including 26 the dismissal of the case without further notice.” (Id. at 2) (emphasis in original). Plaintiff 27 failed to respond to the order to show cause (“OSC”) and on April 27, 2020, the Court vacated the 28 trial date and entered another OSC directing Plaintiff to show cause by June 26, 2020, why the 1 case should not be dismissed. (Doc. 169.) The Court again warned Plaintiff that failure to respond 2 could result in the dismissal of the case without further notice. (Id. at 2.) 3 Based on Plaintiff’s failure to comply with the Court’s April 27, 2020 OSC and other orders 4 of the Court, and Plaintiff’s failure to prosecute the case, this action shall be dismissed, with 5 prejudice, for the reasons set forth below. 6 II. Discussion 7 A. Plaintiff’s Failure to Comply with Court Orders and Failure to Prosecute 8 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 9 or with any order of the Court may be grounds for the imposition by the Court of any and all 10 sanctions . . . within the inherent power of the Court.” E.D. Cal. L.R. 110. District courts have the 11 inherent power to control their dockets and “[i]n the exercise of that power they may impose 12 sanctions, including, where appropriate . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 13 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 14 prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., 15 Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 16 Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) (dismissal for failure to comply with local 17 rule requiring pro se plaintiff to keep court apprised of address); Malone v. U.S. Postal Service, 18 833 F.2d 128, 130–31 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 19 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and failure to 20 comply with local rules); Lopez v. Chase Home Fin., No. CVF09-0449 LJOGSA, 2009 WL 21 1098760, at *1 (E.D. Cal. Apr. 20, 2009) (dismissal of certain defendants for failure to comply 22 with court). 23 As set forth above, Plaintiff has demonstrated a pattern of disregard for Court orders and a 24 complete lack of interest in prosecuting this case. For example, Plaintiff failed to comply with 25 discovery orders entered on June 26, 2019, (Doc. 140), and August 8, 2019, (Doc. 148). Plaintiff 26 also failed to oppose Defendants’ motion for summary judgment despite being given multiple 27 opportunities to do so, which necessitated continuing the trial date over Defendants’ objection. 28 (See Doc. 161.) Finally, Plaintiff failed to participate in preparing the joint pretrial statement, 1 which again necessitated continuing the trial date. (See Doc. 166.) Notwithstanding this, the Court 2 did not vacate the trial date, but gave Plaintiff another opportunity to participate in drafting the 3 pretrial statement. (Id.) Plaintiff again disregarded the Court’s order, and has now failed to respond 4 to multiple OSCs directing him to show cause why the Court should not dismiss the case. (See, 5 e.g., Doc. 169.) The Court has not received any filing or any other type of communication from 6 Plaintiff in this case since November 25, 2019. (See Doc. 159.) 7 B. Propriety of Terminating Sanctions 8 1. Balancing Test 9 The Court has the inherent power to control its docket and may, in the exercise of that 10 power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los 11 Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action 12 for failure to comply with a pretrial order, the Court must weigh: (1) the public’s interest in 13 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 14 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 15 (5) the availability of less drastic sanctions. In re Phenylpropanolamine (PPA) Products Liability 16 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quotation marks and citation omitted). These 17 factors guide a court in deciding what to do and are not conditions that must be met for a court to 18 take action. In re PPA, 460 F.3d at 1226 (citation omitted). 19 2. Application of Factors 20 a. Public’s Interest 21 “‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” 22 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2006) (quoting Yourish v. California Amplifier, 23 191 F.3d 983, 990 (9th Cir. 1999)), as the “orderly and expeditious resolution of disputes is of 24 great importance to the rule of law,” In re PPA, 460 F.3d at 1227. This case has been pending 25 since 2012, and Plaintiff’s refusal to comply with orders of the Court and failure to prosecute the 26 case threatens to delay the resolution on the merits at trial, as the Court has already had to delay 27 the trial multiple times and vacate the trial date due to Plaintiff’s failure to participate in the case. 28 In re PPA, 460 F.3d at 1227. Further, Plaintiff has given no indication that he will begin to 1 participate again or when that will occur; thus there is no end in sight to a case that has been 2 pending for over eight years—due to Plaintiff’s non-participation. Accordingly, this factor weighs 3 in favor of dismissal. 4 b. Need to Manage Docket 5 The Court’s need to manage its own docket also weighs in favor of dismissal. Id. at 1227. 6 This action has been pending for over eight years, and Plaintiff has had ample time to prepare for 7 trial and comply with the scheduling order and other orders of the Court. The Court has an 8 extremely heavy caseload, and when counsel or pro se litigants disregard orders and deadlines, the 9 Court’s ability to manage its docket and guide cases towards resolution is compromised. See id. 10 Moreover, Plaintiff’s has offered no explanation and has simply disregarded the Court’s OSCs and 11 the Court’s repeated warnings regarding terminating sanctions. “It is incumbent upon the Court 12 to manage its docket without being subject to routine noncompliance of litigants,” Pagtalunan, 13 291 F.3d at 642, and here, Plaintiff’s continued disobedience of the Court’s orders and failure to 14 prosecute the case amounts to more than “routine noncompliance,” id. 15 c. Prejudice to Defendants 16 Next, while the mere pendency of an action does not constitute prejudice, the impairment 17 of a defendant’s ability to proceed to trial is prejudicial. In re PPA, 460 F.3d at 1227-28. 18 (quotation marks omitted). Plaintiff’s refusal to participate in drafting a pretrial statement 19 interferes with Defendants’ ability to engage in meaningful trial preparation with the full benefit 20 of the information to which they are entitled under the Court’s scheduling order. Plaintiff’s refusal 21 to even participate in the case, with the resulting delays of the trial date, similarly prejudices 22 Defendants. 23 The ability to meaningfully prepare for a trial is of no small significance given that the 24 opposing party is pro se, which can lead to increased unpredictability during trial while demanding 25 greater latitude and leniency in the handling of any unexpected trial issues which arise. At a 26 minimum, Defendants are entitled to prepare for trial with the benefit of Plaintiff’s pretrial 27 statement identifying his witnesses, his exhibits, and other relevant information. Plaintiff’s refusal 28 to provide this essential information via a pretrial statement causes Defendants prejudice, without 1 justification. As set forth above, Defendants are also prejudiced by the fact that Plaintiff has caused 2 lengthy delays of the trial date, with no end in sight. It is unfair to Defendants for the Court keep 3 this case pending indefinitely, while the Court and Defendants wait for Plaintiff to participate in 4 the case and respond to the Court’s and Defendants’ many attempted communications. 5 d. Disposition on the Merits 6 Public policy always favors disposition on the merits, but “this factor ‘lends little support’ 7 to a party whose responsibility it is to move a case toward disposition on the merits but whose 8 conduct impedes progress in that direction.” In re PPA, 460 F.3d at 1228 (quoting In re Exxon 9 Valdez, 102 F.3d 429, 433 (9th Cir. 1996)). Here, Plaintiff’s own conduct is at issue and despite 10 being given many chances to comply with the Court’s orders and to participate in the case, Plaintiff 11 has failed to do so. See id. at 1228. 12 e. Alternative Sanctions 13 Finally, there are no alternative sanctions which are satisfactory. The monetary sanctions 14 imposed by the Court on Plaintiff in the past have proven to be an inadequate remedy for Plaintiff’s 15 repeated failures to engage with the case and have not changed Plaintiff’s behavior. Further, the 16 preclusion of exhibits or witnesses cannot be viewed as a sanction given that the preclusion of 17 exhibits and witnesses amounts to nothing more than the consequence compelled by the failure of 18 Plaintiff to participate in filing a pretrial statement identifying exhibits and witnesses. See Local 19 Rule 281(b)(10),(11). 20 Plaintiff has been given many opportunities to comply with orders of the Court and 21 prosecute the case. The Court is mindful that Plaintiff is proceeding pro se and for that reason, the 22 Court has given Plaintiff many chances and many warnings before imposing the sanction of 23 dismissal of the case—notwithstanding the complete absence of any cause shown by Plaintiff for 24 his disregard of Court orders and lack of interest in prosecuting the case. 25 III. Conclusion and Order 26 The Court finds that dismissal of this action is appropriate. In re PPA, 460 F.3d at 1228- 27 29. Dismissal is a harsh sanction and it is not to be meted out lightly. Dreith v. Nu Image, Inc., 28 648 F.3d 779, 788 (9th Cir. 2011). However, as set forth above, the public’s interest in expeditious 1 resolution weighs in favor of dismissal; the conduct at issue significantly impacts the Court’s 2 ability to manage its docket; Plaintiff’s refusal to prosecute the case and the resulting delays 3 prejudices Defendants; and there are no satisfactory alternative sanctions available given the 4 procedural posture of the case and Plaintiff’s repeated failures to abide by Court orders despite 5 other forms of sanctions imposed on him. Dreith, 648 F.3d at 788. 6 Based on the foregoing, it is HEREBY ORDERED that this action is dismissed, with 7 prejudice, based on Plaintiff’s failure to prosecute the case and failure to comply with court orders, 8 as set forth above. The Clerk is DIRECTED to enter judgment pursuant to this Order. 9 IT IS SO ORDERED. 10

Sheila K. Oberto 11 Dated: July 6, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 12

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28