Martin v. Dominos Pizza

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 JARELL SHABAZZ MARTIN, ) 4 ) Plaintiff, ) Case No.: 2:22-cv-00784-GMN-DJA 5 vs. ) 6 ) ORDER DOMINO’S PIZZA. ) 7 ) Defendant. ) 8 ) 9 10 Before the Court are Plaintiff Jarell Shabazz Martin’s Responses, (ECF Nos. 47, 48), to 11 the Court’s Order to Show Cause, (ECF No. 46). 12 Also pending before the Court is the Renewed Motion to Compel Arbitration and 13 Dismiss or Stay Proceeding, (ECF No. 29), filed by Defendant Domino’s Pizza. Plaintiff filed 14 a Response, (ECF No. 31), to which Defendant filed a Reply, (ECF No. 36). Plaintiff then filed 15 another Response, (ECF No. 38), which the Court construes as a Sur-Reply filed without leave 16 of Court. 17 Also pending before the Court is Defendant’s Motion for Order to Show Cause, (ECF 18 No. 28). Plaintiff filed a Response, (ECF No. 30), to which Defendant filed a Reply, (ECF No. 19 35). Plaintiff then filed another Response, (ECF No. 39), which the Court construes as a Sur- 20 Reply filed without leave of Court. (ECF No. 38). 21 Also pending before the Court are Defendant’s Motions to Strike, (ECF Nos. 40, 41), 22 Plaintiff’s Sur-Replies, (ECF Nos. 38, 39). 23 For the reasons discussed below, the Court DISMISSES Plaintiff’s Complaint with 24 prejudice pursuant to its inherent powers because Plaintiff repeatedly submitted falsified 25 evidence to the Court and offered misrepresentations in furtherance of his position when given 1 the opportunity to explain his conduct. The Court also GRANTS Defendant’s Motions to 2 Strike because Plaintiff’s Sur-Replies were filed without leave of Court and there are neither 3 exceptional nor extraordinary circumstances warranting a sur-reply. Additionally, the Court 4 DENIES as moot Defendant’s Motion for Order to Show Cause, (ECF No. 28), because the 5 Court independently issued its own Order to Show Cause, (ECF No. 46). 6 I. BACKGROUND 7 This case arises from Defendant’s alleged discrimination against Plaintiff based on his 8 race and color in violation of Title VII of the Civil Rights Act of 1964. (See generally Compl., 9 ECF No. 1). Early on in the proceedings, Defendant moved to compel arbitration and dismiss 10 or stay proceedings, (ECF No. 9), contending that Plaintiff’s claims were governed by the 11 Domino’s Pizza Arbitration Agreement Plaintiff signed when Defendant hired him. (Mot. 12 Compel Arbitration & Dismiss or Stay Proceedings, ECF No. 9). The Case 13 Management/Electronic Case Filing (“CM/ECF”) system stated that Plaintiff had until 14 September 28, 2022, to respond to Defendant’s Motion to Compel Arbitration and Dismiss or 15 Stay Proceedings. (Id.). By February 8, 2023, Plaintiff had yet to file a response, resulting in 16 the Court granting Defendant’s Motion to Compel Arbitration and Dismiss or Stay Proceedings 17 as unopposed under Local Rule 7-2(d). 18 Plaintiff then filed a Motion to Reconsider, explaining that he relies on the Public 19 Access to Court Electronic Records (“PACER”) system to view case filings and docket 20 information. (Mot. Reconsider 1:13–28, ECF No. 14). Plaintiff alleged that, unlike CM/ECF, 21 PACER did not provide a response deadline for Defendant’s Motion to Compel Arbitration and 22 Dismiss or Stay Proceedings. (Id.). Plaintiff provided a screenshot from PACER in his Reply 23 which initially appeared to corroborate his argument: In the screenshot, shown below, the entry 24 of Defendant’s Motion Compel Arbitration and Dismiss or Stay Proceedings, located at ECF 25 No. 9, does not include a response deadline. (Reply 2:7–28, ECF No. 22). 1 PATO cA OIOMMNacuRSMcnsesca Tes acesNi ox oa VATS ma 0 AN ° 1 ® Cs a Se 3 MOTION For Exemption from ENE Program re10 Order Setting Early Neutral Evatcaucrcucuen, oy Serene Dominos Pizza. Responses due by 10/5/2022. (Mahoney, Scott) (misc) (settlement) 4 Monday, September 19, 2022 5 6 ORDER Setting Early Neutral Evaluation session. Early Neutral Evaluation set for 11/17/2022 at 10:00 AM in LV Chambers - Videoconference b- Ugicbue Uuuye Drones “ler Sinned by Magistrate Judge Brenda 7 Weksle 4/2022. (Copies have been distributed pursuant to the NEF - LOE) 8 Wednesday, September 14, 2022 0 t 10 MOTION to Compel Arbitration and Dismiss or Stay Proceedings, by Defendant Dominos Pizza, (Mahoney, Scott) (arbitration) 11 Att: 1% Index, 12 Att: 2%) Exhibit A-B ee 13 || (Reply 2:7-28). Based on Plaintiff’s representations and the screenshot he submitted in his 14 |! Reply, the Court granted Plaintiff's Motion to Reconsider, and gave Defendant leave to re-file 15 || its Motion to Compel Arbitration and Dismiss or Stay Proceedings so that Plaintiff would have 16 || an opportunity to respond. (Order, ECF No. 25). Defendant then filed its Renewed Motion to 17 || Compel Arbitration and Dismiss or Stay Proceedings, (ECF No. 29). 18 Defendant also filed a Motion for Order to Show Cause, (ECF No. 29), contending that 19 || Plaintiff manipulated the screenshot above by deleting the response deadline generated by 20 || PACER. (Mot. Order Show Cause, ECF No. 28). The Court subsequently examined Plaintiff’s 21 || filings and observed that Plaintiff's screenshots included portions of his email exchange with 22 || Las Vegas Public Docketing about a collateral matter—his exemption from the Early Neutral 23 || Evaluation (ENE) with the Magistrate Judge. (Mot. Reconsider 1:21—23). The screenshots 24 |! Plaintiff submitted in his email to Las Vegas Docketing unlike the screenshots Plaintiff 25 || submitted in his Reply to the Court, did display a response deadline. This evidence confirmed

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1 || that, contrary to Plaintiff’s assertions, PACER had generated a response deadline for 2 || Defendant’s Motion to Compel Arbitration and Dismiss or Stay Proceedings. This comparison 3 || also revealed that Plaintiff had apparently submitted a fraudulently manipulated image as 4 || evidence to this Court in his Reply. 5 6:34 a Fe 6:34 a 6:34 □□□ 6 ®\ € Case Number: 2:22-cv-00784-GMN.. 44 © Case Number: 2:22-cv-O0784-GMN.. 4 €3 Nupiter@h i But now it's really starting to showease with this EME devc teeing Nakphiniie nena. relljupiter@hotmail.com being vacated. ls showcasing the court is being bias. aclually prove my case al all. Which all been ee Considering [have evidence thal prove every claim walling to dois prove my case. How can | □□□□□ my 7 ase Number: 222-cv-O0784-GMA"e * agains! the defendant, So I'm hawing broutshe case on these proceedings when you're allowing the □□□□□□□□□□□□□□□□□□□□□ com understanding, how dogs the defendant have mon say defendant to comtrol and stall my casa? 8 To L¥ Public Decheting in my case than | do? I'm going to just bring this case to Sap 27, 2002 at 3:39 AM » the public. fim feeling like these judges ara showcasing blas in tevorite of the defendant. ruartin v: DowiWioa Pina 9 Hello, I'm Irving to understand why this motion for So | really want to know why was this moten granted in 12 92 [ET ORDER Granting 11 Mation □□□ exemption fram ENE program was gramted? | was favor of the defendant? Not giving me a chance to Exemption hom ENE program, IT & FURTHER about to send my evidence for my case in lomorrew. actually prove my case at all. Which all I've been ORDERED that the pro-ENE Telaphonic Conferanoa sot 10 Only to find out that somehow the Defendant gets to waiting to dois prowe my case. How can | prove my for 170.18/2022 and the ENE setter 1147/2002 are have mora control ovar my cage than | do. It's really case on these proceedings when you're allowing the VACATED. Signed by Magistrate Judge Brenda □□□□□□□ starting to feel like this is being judged bias, andi mot fair defendant bo corral and shall my case? on 8202022. (Copies have been distributed pursuant to 1 1 all. the NEF - LXE) Ive been accused by ong pdge claiming | waited Martin v. Dominos Pi ek acu as uk cri MOTION For Exemption fram ENE 1D until August to file my suit. When that's not true at all, | # Se = = at nai pee baat was told the court would send me an affidavit to mail off CRIEEDY ORCER Granting! ration tar Se eee ae ae neon □□ □□ to the Defendant, In which | was also informed that the Exemation torn ENE program. IT & FURTHER Ee See oesneanee BOOeT iney (aetna rest slope for my case would be mailed te me, |v ORDERED thal the pre-ENE Talapharie Conliranca sf = 1 cnecties is actualy aleconk a mapas colicin: for (1/2022 and the ENE sat tor 11/17/2002 are oP Ex tS fae eats □ 3 Not online, since | don't have 24 hour acosss VACATED. Signed by Magistrate Jucige Brenda Weksler eatin Bees en Bae □□□ □□ to internat. an ERDO22, (Capes hone bean detibuted pursuant to teaches sperma maa tha NEF = LOE) Boy Whar a a lin rence □□□□ Gr 14 i waited undil near the end of July and began erueiik cae i a epee researching what | needed to do. | was given bad uk SEE MOTION For Exemption trom ENE the NEF - information fram the lacy whe filed my case. So I'm net Cae Sees a eae ieee sure why the first judge has thes impression that | oe oy Defendant ronan Eze, Fieaporises dus a - MOTION to Gompel Arbitration anc 15 waited. [ve never filad a lawsuit before, and asked the □□□ etre ence etry omnes Serene. by Deleneant □□□□□ employee filing what | needed to do. 1 [CII ESD ORDER Sotting Earty Neutral co dum boy SARE Mahoney, Scott 16 But now it's really starling to showcase with this ENE ‘Wik Suki. being vacabed, I$ showcasing Ue cenit ig being bias. Videooanlarence balora Magigiraia.Judge Brenda Considering | have evidence that prove avery claim Weksler. Signed by Magistrate Judge Grenda Weksler on 17 against the defendant. So lim hawing trouble BNSVZ022, (Copies have been distributed pursuant to 1 g fochive WEA? Piney More Deakeir Archos Vicar Peply Wore Deli Arche Micwr Reply More

19 (Docket Screenshots, Ex. B to Mot. Reconsider, ECF No. 14). These screenshots directly 20 || contradicted Plaintiffs explanation and evidence. ! 21 The Court issued an Order to Show Cause? expressing its doubts about the veracity of 22 || Plaintiff's representations and requiring Plaintiff to explain the inconsistency between the 24 ||! The Court separately contacted Las Vegas Public Docketing and obtained Plaintiff’s September 27 email. This email again showed that PACER had generated a September 28, 2022, response deadline. 25 ||? The Court also required Plaintiff to sign his response to the Court’s Order to Show Cause in accordance with Fed. R. Civ. P. 11(a). (Order Show Cause 3:6, ECF No. 46). Plaintiff signed neither of his Responses. (Resp., ECF Nos. 47, 49). Page 4 of 13

1 screenshots in his email to Las Vegas Public Docketing displayed at ECF No. 14 and the 2 version he filed in his Reply at ECF No. 22. (Order Show Cause (“OSC”) 3:4–6, ECF No. 46). 3 The Order warned Plaintiff that failure to offer a good faith explanation for his conduct could 4 result in the Court granting Defendant’s Renewed Motion to Compel Arbitration and Dismiss 5 or Stay Proceedings. (Id. 3:1–4). In Response, Plaintiff accused the Court of bias. Specifically, 6 Plaintiff averred that PACER did not generate a response deadline to Defendant’s Motion to 7 Compel Arbitration and Dismiss or Stay Proceedings until after he filed his Motion for 8 Reconsideration. (Resp. OSC 5:16–18, ECF No. 47). According to Plaintiff, “this raises 9 concerns that the Court, which has control over its own PACER monitor, may have edited the 10 document.” (Id.). Notably, the screenshots were not from the Judiciary’s PACER system. 11 Rather, the PACER Monitor system Plaintiff used is produced by Fitch Solutions, a data 12 aggregating company. See About Fitch Solutions, FITCH SOLUTIONS, 13 https://www.fitchsolutions.com/about-fitch-solutions (last visited November 8, 2023). 14 Plaintiff’s screenshot of the email with Las Vegas Public Docketing provided in his 15 Response also conflicts with the screenshot he previously provided to the Court. Although the 16 screenshot is of the same email exchange previously provided in ECF No. 14, which had 17 contained the response deadline, the response deadline is now missing. Compare the 18 screenshot Plaintiff re-attached to his Response to the Court’s Order to Show Cause on the left 19 with the screenshot he submitted in his Motion to Reconsider on the right: 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// | 6:34 aS □□ 2 < Case Number: 2:22-cv-O0784-GMN... 44 6:34 onl > Ea UW Pe □□ cL □□ □□ tavor of the defendant? Not giving me a chance to 3 < Case Number: 2:22-cv-O0784-GMN... AA achually prowe my case al all, Which all been Preany warn wo niuw wiry was uns rue grantee me waiting to do is prowe omy case. How can | prowe my favor of the defendant? Not giving mea chance to case on these proceedings when you're allowing the actually prove my case at all. Which all I've been defendant to control and stall my casa? 4 waiting to do is prove my case. How can ! prove my case on these proceedings when you're allowing the defendant to control and stall my case? 5 Martin wv. Domines Pizza thetic Ob Recaart □□□□ Martin v. Dominos Pizza Updated: 3 hours ago 12 fF CET ORR Granting! hMotion for Exemotion trom ENE program, IT ES FURTHER a2 FE ES ORDER Granting11 Motion for ORDERED mot the pre-EME Telagmonec GConterance sot 6 Exemption from ENE program. IT IS FURTHER for 1 LEAP? amd the EME met foe 11 7/0? are ORDERED that the pre-ENE Telephonic Conference set VACATED. Signed by Magistrate Jucge Brenda Veksler for 11/16/2022 and the ENE set for 11/17/2022 are aa a oe BLN □ VACATED. Signed by Magistrate Judge Brenda Weksler oe ae apenas ee clei paveners □□ 7 on 93/26/2022. (Copies have been distributed pursuant to Wwe INNEIF = (LONE) the: NEF - LOR} 90 SS CC MOTION For Exemption from ENE aa EE MOTION For Exemption from ENE Program ret 1Oncke Sartting arty MNewutrad Evaluation 8 Program re10 Order Setting Early Neutral Evaluation Sencion. by Oafendart Dormunos Pizza. Piesporses due Session, by Defendant Dominos Pizza. Responses due ey Ce Se, (kaeeery, Shoot) prrersec) (ett beret) by 10/5/2022. (Mahoney, Scott) (misc) (settlement) = eran ee 10 ETD ORDER Setting Eany Neutra Scene caceacanatarcata Creluat Sn reo Eany Neutrel Eranaon ection 11/17/2022 at 10:00 AM in LY Chambers - MAN T2022 at POOO0 AKA be Le Cnanaberm Videoconference before Magistrate Judge Brenda Wickecsoorienamoc Exton Mage strate Juke Eimemcha 10 Weksler. Signed by Magistrate Judge Brenda VWeksler on Wihpebestatleser SRicpariamer Koy Date pony terete thcpee ER reenact WWeeom □□□□ □□□□ 9/19/2022. (Copies have been distributed pursuant to R1W20C2. popes hewe been distributed pursuant to the NE = the □□□ ie 11 a = EX==EEN MOTION to Comper Arbitration anda Sy Mone to Compe Arinration and ee Dury or Say Procenctran. ty Ovtraws Oornros 12 trahon) 13 a Ss Ga --- _ □ Delete Archive Move Reply More [re ej Ga oa □□□ 14 Center Aare Powe Mowe herr owe 15 || (Email Screenshot, Ex. A to Resp. OSC, ECF No. 47); (Docket Screenshots, Ex. B to Mot. 16 ||] Reconsider, ECF No. 14). The Court now addresses whether Plaintiff falsified evidence and 17 || offered misrepresentations to the Court below. 18 || ID. LEGAL STANDARD 19 District courts have inherent power to sanction a party for improper conduct. Fink v. 20 || Gomez, 239 F.3d 989, 991 (9th Cir. 2001). A court may issue sanctions under its 21 inherent power only upon finding “bad faith or conduct tantamount to bad faith.” Jd. at 994. 22 || Bad faith, or conduct tantamount to bad faith, encompasses “‘a variety of types of willful 23 || actions, including recklessness when combined with an additional factor such as frivolousness, 24 ||harassment, or an improper purpose.” /d. Upon a finding of bad faith, the decision to issue 25

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1 sanctions is within the court’s discretion. Air Separation, Inc. v. Underwriters at Lloyd’s of 2 London, 45 F.3d 288, 291 (9th Cir. 1995). 3 One possible sanction within a court’s discretion is to dismiss the claims asserted by the 4 bad-faith actor. See, e.g., Leon v. IDX Systems Corp., 464 F.3d 951 (9th Cir. 2006) (dismissing 5 the plaintiff’s claims because he willfully spoliated evidence); Anheuser-Busch, Inc. v. Nat. 6 Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995) (finding that dismissal is appropriate where 7 a “pattern of deception and discovery abuse made it impossible” to proceed with the action). 8 Dismissal is warranted when “a party has engaged deliberately in deceptive practices that 9 undermine the integrity of judicial proceedings.” Anheuser–Busch, 69 F.3d at 348. 10 Dismissal is also appropriate when the sanctionable conduct is willful or done in bad 11 faith. Id. “Dismissal is particularly warranted where one party submits falsified evidence” 12 because the “submission of falsified evidence substantially prejudices an opposing party by 13 casting doubt on the veracity of all the culpable party’s submissions throughout [the] litigation.” 14 Pope v. Fed. Express Corp., 138 F.R.D. 675, 683 (W.D. Mo. 1990) (aff’d in part, vacated on 15 other grounds, 974 F.2d 982 (8th Cir. 1992)). Additionally, when a party submits falsified 16 evidence, the “prejudiced party is forced either to attempt independent corroboration of each 17 submission, at considerable expense of time and money, or to accept the real possibility that 18 those discovery documents submitted by the opposing party are inaccurate.” Id. Moreover, 19 excluding the fabricated evidence is not always enough to deter discovery misconduct because 20 “[l]itigants would infer that they have everything to gain, and nothing to lose, if manufactured 21 evidence merely is excluded while their lawsuit continues.” Id. 22 When determining whether dismissal is an appropriate sanction, courts consider several 23 factors: (1) the public’s interest in-expeditious resolution of litigation; (2) the court’s need to 24 manage its dockets; (3) the risk of prejudice to the party seeking the sanctions; (4) the public 25 1 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 2 sanctions. Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993). 3 III. DISCUSSION 4 Having reviewed Plaintiff’s filings and exhibits, the Court finds that Plaintiff twice 5 submitted falsified evidence to the Court and offered misrepresentations in furtherance of his 6 position when given the opportunity to explain his actions, and that this conduct was willful 7 and in bad faith. Plaintiff failed to offer a reasonable explanation for his conduct, instead 8 accusing the Court of fabricating evidence and colluding with Defendant. (See generally Resp. 9 OSC). Plaintiff’s accusations ignore the fact that the Court’s Order to Show Cause was based 10 on filings and evidence he submitted himself. (Id.) Plaintiff’s email and the screenshots of the 11 same exchange in his Motion to Reconsider showed PACER generated a September 28, 2022, 12 deadline for the Motion to Compel Arbitration and Dismiss or Stay Proceedings. That is, 13 Plaintiff exposed the fallacy undergirding his own position. And when confronted with this 14 contradiction, Plaintiff filed additional manipulated screenshots and misrepresentations in 15 furtherance of his position. In short, Plaintiff acted willfully and intentionally altered evidence 16 to deceive the Court and avoid arbitration. 17 The Court must now consider whether Plaintiff’s conduct—fabricating evidence and 18 repeating misrepresentations—warrants dismissal. The Court considers the relevant factors 19 below and concludes that the harsh sanction of dismissal is warranted in this instance.3 20

21 3 Courts should “impose sanctions only ‘after affording an opportunity to be heard.’” Paladin Assocs., Inc. v. 22 Montana Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003). But the opportunity to be heard does not necessarily entitle the subject of a motion to an evidentiary hearing. In re Reed, 888 F.3d 930, 938 (8th Cir. 2018) (quoting 23 Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 335 (2d Cir. 1999) (internal citation omitted)). The Ninth Circuit has made clear that “the opportunity to submit briefs” satisfies the “opportunity to be heard” 24 requirement. See Paladin, 328 F.3d 1145 at 1164–65 (holding that, because the Rule 37 sanctions issues to be resolved were such that an evidentiary hearing would not have aided the [decision-making] process, district court 25 did not abuse its discretion by ruling on the briefing). Here, the Court provided Plaintiff the opportunity to submit a written brief, and finds an evidentiary hearing is not necessary because the record clearly establishes that he submitted falsified evidence and made repeated misrepresentations throughout his filings. 1 A. The Public’s Interest in Expeditious Resolution of Litigation 2 The public’s interest in expeditious resolution of litigation always favors dismissal. 3 Nourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 2002). This is because the public has an 4 overriding interest in securing “the just, speedy, and inexpensive determination of every 5 action.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 6 2006); see Fed. R. Civ. P. 1. Here, Plaintiff’s conduct caused considerable delay in this case. 7 Plaintiff’s actions led to additional motion practice, requiring both Defendant and the Court to 8 review his falsified evidence and misrepresentations throughout these proceedings. See Lee v. 9 Trees, Inc., No. 3:15-cv-0165, 2017 WL 5147146, at *6 (D. Or. Nov. 6, 2017). Plaintiff also 10 filed additional baseless motions and improper sur-replies based on his sanctionable conduct 11 which “has further consumed some of the [C]ourt’s time that could have been devoted to other 12 cases on the docket.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 13 A. The Court’s Need to Manage its Docket 14 Plaintiff’s actions “have impeded the Court’s ability to manage its dockets by obscuring 15 the truth” and consuming more than his share of judicial time and resources. See Huntley v. 16 City of Carlin, No. 3:12-cv-00664, 2014 WL 4064027, at *5 (D. Nev. Aug. 15, 2014); see also 17 Lee, 2017 WL 5147146, at *6 (finding the plaintiff’s “deceptive conduct wasted the time and 18 resources of the court” thereby impeding the court’s ability to manage its docket). The 19 integrity of the judicial process must be protected, and the Court’s ability to effectively manage 20 its own docket must be preserved. Accordingly, this factor also weighs in favor of imposing 21 sanctions. 22 B. The Risk of Prejudice to the Party Seeking Sanctions 23 This third factor, risk of prejudice to the defendant, also weighs in favor of dismissal. A 24 defendant is prejudiced if the plaintiff’s actions impair the defendant’s ability to go to trial or 25 threaten to interfere with the rightful decision of the case. Adriana Int’l. Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). “Falsified evidence substantially prejudices an opposing party 1 by casting doubt on the veracity of all of the culpable party’s submissions throughout 2 litigation” because it hinders the ability of the Court to have confidence in any of its decisions. 3 Juarez, 2016 WL 3660613 at *5 (quoting Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 4 1174, 1180 (10th Cir. 2009). 5 Plaintiff’s fabrication of evidence to avoid arbitration interferes with the rightful 6 decision of what venue this case is adjudicated in, and the ultimate decision of this case. The 7 Court vacated its Order granting Defendant’s Motion to Compel Arbitration because it trusted 8 the veracity of Plaintiff’s filings. But since this vacatur, Plaintiff has submitted Motions and 9 filings with altered screenshots and unsupported arguments. Plaintiff’s pattern of offering 10 misrepresentations “without ‘any sign of repentance or any indication that this pattern of 11 behavior would cease if the case were allowed to proceed’” raises serious concerns that he 12 would further interfere with the rightful decision of this case if allowed to proceed. Buford v. 13 Vang, No. 1:00-cv-06496, 2006 WL 2652220, at *15 (E.D. Cal. Sept. 15, 2006) (quoting Sun 14 World, Inc. v. Lizarazu Olivarria, 144 F.R.D. 384, 391 (E.D. Cal. 1992). Accordingly, this 15 factor also weighs in favor of dismissal. 16 C. The Public Policy Favoring Disposition on the Merits 17 As for the fourth factor, the public policy favoring disposition of a case on the merits, 18 dismissal of Plaintiff’s claims at this stage would not support “the public policy favoring 19 disposition of cases on their merits[.]” In re Phenylpropanolamine, 460 F.3d at 1226. 20 Nonetheless, the Ninth Circuit has “recognized that this factor ‘lends little support’ to a party 21 whose responsibility it is to move a case toward disposition on the merits but whose conduct 22 impedes in that direction.” Id. at 1228. It is Plaintiff’s responsibility to move his case toward 23 disposition on the merits, yet his conduct has only obfuscated the truth and delayed these 24 proceedings. In sum, while this factor favors disposition on the merits, this factor alone “is 25 insufficient to outweigh the other four factors,” especially when considering Plaintiff’s 1 egregious conduct. Pringle v. Adams, No. 10-cv-1556, 2012 WL 1103939, at *10 (C.D. Cal. 2 Mar. 30, 2012). 3 D. Availability of Less Drastic Sanctions 4 The fifth factor considers “whether the court explicitly discussed alternative sanctions, 5 whether it tried them, and whether it warned the recalcitrant party about the possibility of 6 dismissal . . . . [I]t is not always necessary for the court to impose less serious sanctions first, or 7 to give any explicit warning.Valley Eng’rs Inc., 158 F.3d at 1057. 8 Here, the Court warned Plaintiff that his misconduct could result in serious 9 consequences, including dismissal. (See generally OSC). Despite this warning, Plaintiff 10 submitted additional fabricated evidence and repeated the same misrepresentations from 11 previous filings. See Juarez, 2016 WL 3660613 at *6 (determining dismissal was warranted 12 where the plaintiff’s “submission of false evidence [was] not an isolated incident”). The Court 13 finds that less drastic sanctions, including monetary sanctions, would not be useful here 14 because Plaintiff “willfully deceived the Court and engaged in conduct utterly inconsistent with 15 the orderly administration of justice.” Anheuser-Busch, 69 F.3d at 348. Plaintiff’s pattern of 16 deception casts doubt on any subsequent arguments and evidence he may provide. See 17 Anheuser–Busch, Inc., 69 F.3d at 352 (noting past deception will “likely mean it will be 18 impossible for the court to conduct another trial with any reasonable assurance that the truth 19 would be available” and rejecting lesser sanctions “where the court anticipates continued 20 deceptive misconduct”). “Any lesser sanction would suggest to future litigants that they may 21 manufacture evidence and suffer no meaningful consequences if caught, because they would 22 still be able to maintain a claim or defense against the opposing party—a message equivalent to 23 the ‘no harm, no foul’ adage.” Lee, 2017 WL 5147146, at *8. 24 The Court is mindful of the strong public policy which favors disposition of cases on the 25 merits. But the Court finds that a less severe sanction is not appropriate here. Plaintiff received 1 an adverse ruling on Defendant’s Motion to Compel Arbitration and Dismiss or Stay 2 Proceeding and instead of acknowledging he missed the response deadline, he submitted 3 falsified evidence to deceive the Court into vacating its Order.4 When given the opportunity to 4 explain his actions, Plaintiff submitted additional falsified evidence and offered more 5 misrepresentations. Under these circumstances, the Court is unable to conclude dismissal is not 6 warranted. Accordingly, the Court DISMISSES Plaintiff’s Complaint with prejudice. 7 /// 8 //// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 21 4 Even if Plaintiff was telling the truth and PACER did not generate a response deadline, Local Rule (“LR”) 12- 1(a)(2) establishes that “responses to pretrial motions and notices must be filed and served within 14 days from 22 the date of service of the motion.” Thus, Plaintiff’s Response to Defendant’s Motion to Compel Arbitration and Dismiss or Stay Proceeding was always due by September 28, 2022, regardless of whether PACER generated a 23 response deadline. It is Plaintiff’s responsibility to comply with this Court’s Local Rules and manage deadlines. See, e.g. Briones v. Riviera Hotel & Casino, 116 F.3d 379, 382 (9th Cir. 1997) (“Pro se litigants are not excused 24 from following court rules[.]”). Nevertheless, the Court recognizes that mistakes happen, and deadlines are missed. If Plaintiff merely acknowledged that he failed to comply with the deadline set by PACER and this 25 Court’s Local Rules, the Court would have been amenable to reconsideration, as demonstrated by its Order granting Plaintiff’s Motion to Reconsider. Instead, Plaintiff opted to falsify evidence and repeatedly offer misrepresentations to obfuscate the truth. The Court cannot excuse this conduct. 1 IV. CONCLUSION 2 IT IS HEREBY ORDERED that Plaintiff’s Complaint, (ECF No. 1), is DISMISSED 3 with prejudice. 4 IT IS HEREBY ORDERED that Defendant’s Renewed Motion to Compel Arbitration, 5 (ECF No. 29), is DENIED as moot. 6 IT IS FURTHER ORDERED that Defendant’s Motion for Order to Show Cause, (ECF 7 No. 28) is DENIED as moot. 8 IT IS FURTHER ORDERED that Defendant’s Motions to Strike, (ECF Nos. 40, 41), 9 are GRANTED. 10 The Clerk of Court is instructed to close the case and enter judgment accordingly. 11 12 DATED this __9___ day of November, 2023. 13 14 ___________________________________ Gloria M. Navarro, District Judge 15 United States District Court 16 17 18 19 20 21 22 23 24 25