United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART DEFENDANT U.S. BANK NATIONAL
ASSOCIATION'S MOTION TO DISMISS
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on Defendant U.S. Bank National
Association (“U.S. Bank”)'s Motion to
Dismiss, Dkt. #16.[1] Pursuant to Rules 37 (b)(2)(A)(v), 37
(d)(3) and 41(b), U.S. Bank moves the Court for an Order
dismissing this action with prejudice and awarding U.S. Bank
the attorney's fees and costs it has incurred in
defending this action. Dkt. #16 at 1. Plaintiff fails to
oppose this Motion. For the reasons set forth below, the
Court GRANTS IN PART U.S. Bank's Motion.
I.
BACKGROUND
A full
background of this case is not necessary for the purposes of
this Motion. On August 18, 2016, the Court issued its Order
Regarding Initial Disclosures, Joint Status Report and Early
Settlement. Dkt. #8. The Order directed the parties to
provide initial disclosures under Rule 26(a)(1)(A) on or
before September 22, 2016, to conduct a Rule 26(f) conference
by September 15, 2016, and to file a combined Joint Status
Report by September 29, 2016. Id. Defendant U.S.
Bank timely provided U.S. Bank's initial disclosures, but
Plaintiff failed to provide disclosures or otherwise respond.
See Dkt. #10 at ¶ 2.
U.S.
Bank's counsel emailed Plaintiff on August 22 and
September 9, 2016, and left a voicemail for Plaintiff on
September 13, 2016, seeking his cooperation in scheduling the
Rule 26(f) conference and in preparing and filing the Joint
Status Report as required by the Court. Plaintiff failed to
respond in any fashion. Id. at ¶ 3.
Plaintiff
was served via mail and email with U.S. Bank's First Set
of Interrogatories and Requests for Production to Plaintiff
on September 25, 2016. Id. at ¶ 4; Dkt. #10-1.
Plaintiff apparently failed to respond in. On October 25,
2016, U.S. Bank's counsel emailed Plaintiff asking when
responses would be received. Plaintiff never responded. Dkt.
#10 at ¶ 4. On October 28, 2016, U.S. Bank's counsel
telephoned Plaintiff and conducted a Rule 37(a)(1)(A)
conference regarding Plaintiffs failure to respond to the
discovery requests. Id. Plaintiff apologized for his
delay and promised to serve complete responses on or before
Friday November 4, 2016. Id. U.S. Bank received
nothing from Plaintiff. Id. U.S. Bank filed a Motion
to Compel on November 7, 2016. Dkt. # 9. Plaintiff failed to
respond. The Court granted the Motion to Compel and a
subsequent Motion for Attorney Fees. Dkts. #11 and #15. The
Court gave Plaintiff until December 15, 2016, to comply with
his discovery obligations. Dkt. #11. Plaintiff has apparently
failed to do so. Dkt. #16 at 2. U.S. Bank filed the instant
motion on January 9, 2017. Plaintiff has again failed to
respond.
II.
DISCUSSION
Rule
26(a)(1)(A) requires Plaintiff to provide basic information
to support his claims in this action. Plaintiff has continued
to ignore that rule. Plaintiff has now ignored the
Court's subsequent Order on U.S. Bank's Motion to
Compel. Under Rules 37(b)(2)(A) and 37(d)(3), sanctions may
be warranted for Plaintiff's behavior, up to and
including dismissal. Plaintiff has had notice of the
possibility of this extreme sanction, and has again failed to
respond. Under Local Rule 7(b)(2), if a party fails to file
papers in opposition to a motion, such failure may be
considered by the court as an admission that the motion has
merit.
In
deciding whether a sanction of dismissal or default for
noncompliance with discovery is appropriate, the district
court must weigh five factors: “(1) the public's
interest in expeditious resolution of litigation; (2) the
court's need to manage its docket; (3) the risk of
prejudice to the [opposing party]; (4) the public policy
favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.” Computer
Task Grp., Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir.
2004). The Court has considered each of these factors and
determined that Plaintiff's complete lack of compliance
with this Court's prior Orders, obligation to respond to
Motions, and obligations under the rules regarding discovery
leave the Court with no less drastic sanction than dismissal
with prejudice. The Court is forced to agree with U.S. Bank
that Plaintiff “has done nothing but file a lawsuit and
sit on his hands, ” and that Plaintiff is apparently
hoping to “string out this lawsuit unnecessarily with
no foreseeable resolution.” Dkt. #16 at 3. Accordingly,
the Court finds that U.S. Bank's requested relief is
warranted and GRANTS its Motion.
Under
Rule 37(b)(2)(C), in addition to the above sanction, the
Court “must order [Plaintiff] to pay the reasonable
expenses, including attorney's fees, caused by the
failure [to comply with the Court's discovery order],
unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” U.S.
Bank argues that it should be awarded “the full amount
of attorneys fees and costs incurred in defending this
action, ” however U.S. Bank cites to no authority for
that proposition. Instead, the Court finds that U.S. Bank
should be awarded only the reasonable expenses incurred after
Plaintiff failed to comply with the Court's Order
granting U.S. Bank's Motion to Compel, beginning on
December 15, 2016. Given the circumstances of this case, the
Court determines that the award of further expenses would be
unjust and is not supported by sufficient legal authority.
The Court has reviewed U.S. Bank's supporting
declaration, determined that the specific hours in question
and rate are reasonable, and calculates the award at a sum of
$2, 080.50.
III.
CONCLUSION
Having
reviewed the relevant briefing, the declarations and exhibits
attached thereto, and the remainder of the record, the Court
hereby finds and ORDERS:
1)
Defendants Glogowski Law Firm and Allegiant Law Group's
Motion ...