United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION FOR SANCTIONS
A. Tsuchida, Chief United States Magistrate Judge.
Oscar Lee Olive requests the imposition of monetary sanctions
against Defendants Hayley Marie Robinson and Justus Kepel for
failure to respond or file objections to his requests for
interrogatories, requests for production, and requests for
admission. Dkt. 47. The Court re-noted the motion for
consideration on June 21, 2019, and ordered Defendants
Robinson and Kepel to show cause by June 17, 2019 as to why
this Court should not impose sanctions against them. Dkt. 48.
Defendants did not respond to the Court's Order to Show
Defendants' complete disregard of discovery procedures
and this Court's orders, Plaintiff's motion for
sanctions shall be granted, in part, as detailed herein.
12, 2018, Plaintiff filed his complaint alleging that
Defendants Robinson and Kepel committed a series of
defamatory publications that were knowingly false when made,
that they intended to harm him, and caused him to suffer
financial and emotional injuries in excess of $1.5 million.
Dkt. 4. Defendants filed their answers to the complaint on
September 19, 2019 (Dkts. 19 and 20) and submitted a Joint
Status Report on October 9, 2018. Dkt. 23. Defendant Robinson
is proceeding pro se. Defendant Kepel is represented
by Attorney Alan S. Middleton. Id., p. 6. Pursuant
to the parties' Joint Status Report, the Court set the
pretrial deadlines, including a discovery deadline of April
5, 2019. Dkt. 25. The dispositive motions deadline of May 3,
2019, has already passed and the parties' next deadlines
are on June 21, 2019 and June 28, 2019, when pretrial
statements are to be filed. Id.
January 28, 2019, Plaintiff sent interrogatories, requests
for admission, and requests for production to Defendant
Robinson on January 28, 2019, and despite several follow-ups,
Defendant Robinson failed to respond or object to the
discovery requests. In their last communications on February
27, 2019 and March 3, 2019, Defendant Robinson promised to
send her responses by March 8, 2019. Dkt. 35, Exs. B and C.
On April 1, 2019, Plaintiff filed a motion to compel after
Defendant Robinson failed to send her responses. Dkt. 35, Ex.
A; Dkt. 36. Defendant Robinson filed no reply to the motion.
February 28, 2019, Plaintiff sent interrogatories, requests
for admission, and requests for production to Defendant
Kepel. On March 22, 2019, Defendant Kepel's attorney,
Alan Middleton, assured Plaintiff that he would send the
required discovery requests by April 2, 2019. Dkt. 37, Ex. B.
On April 4, 2019, Plaintiff filed a motion to compel after
Defendant Kepel failed to send his responses. Dkt. 38; Dkt.
37, Ex. A. Defendant Kepel filed no reply to the motion.
April 23, 2019, the Court granted Plaintiff's motions to
compel (Dkts. 36 and 38) and ordered Defendants Robinson and
Kepel to send their discovery responses to Plaintiff by April
30, 2019. Dkt. 39. The Court warned the parties that failure
to comply with the Order could result in further just orders
pursuant to Fed.R.Civ.P. 37(b)(2). Id., p. 2.
6, 2019, Plaintiff filed a motion for sanctions, stating that
as of June 6, 2019, both Defendants have failed to comply
with the Court's Order. Dkt. 47. Although the Court gave
Defendants an opportunity to show cause why sanctions should
not be imposed (Dkt. 48), neither party responded to the
to Federal Rule of Civil Procedure 37(d)(1)(A), a Court may
“on motion, order sanctions if: … (ii) a party,
after being properly served with interrogatories under Rule
33 or a request for inspection under Rule 34, fails to serve
its answers, objections, or written response.” When a
party fails to satisfy either subsection of Rule 37(d)(1)(A),
a court may impose sanctions on the non-compliant party, and
order that: (1) the matters regarding which the order was
made or any other designated facts shall be taken to be
established for the purposes of the action in accordance with
the claim of the party obtaining the order; (2) the
disobedient party is not allowed to support or oppose
designated claims or defenses, or is prohibited from
introducing designated matters in evidence; (3) pleadings or
parts thereof be stricken, or that further proceedings are
stayed until the order is obeyed, or the action or proceeding
or any part thereof be dismissed, or judgment by default be
entered against the disobedient party. Fed.R.Civ.P.
37(b)(2)(A). If a party fails to properly respond to a
request for admission within 30 days after being served, the
truth of matters contained in the written request shall be
deemed admitted. Fed.R.Civ.P. 36(a)(3).
determining whether to impose default as a sanction for
violation of Rule 37, courts must consider: “(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) the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
sanctions.” Wanderer v. Johnston, 910 F.2d
652, 656 (9th Cir. 1990). The Ninth Circuit has further
established three subparts to the fifth factor,
“whether the court has considered lesser sanctions,
whether it tried them, and whether it warned the recalcitrant
party about the possibility of case-dispositive
sanctions.” Conn. Gen. Life Ins. Co. v. New Images
of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007).
Case terminating sanctions should be reserved for a showing
of willfulness, bad faith, or fault by the non-responding
conduct not shown to be outside the control of the litigant
is sufficient to demonstrate willfulness, bad faith, or
fault.'” See United States v. Am. Black
Bears, 244 Fed.Appx. 828, 830 (9th Cir. 2007) (citing
Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th
Cir.2003) (quoting Hyde & Drath v. Baker, 24
F.3d 1162, 1167 (9th Cir.1994)). Disobedient conduct occurs
where the noncompliant party fails to
“…demonstrate that production ... would be
impossible, or that production of the documents would subject
him to civil or criminal sanctions.”
Jorgensen, 320 F.3d at 912; see also,
Virtual Vision, Inc. v. Praegitzer Indus., Inc., 124
F.3d 1140, 1143-44 (9th Cir.1997) (“Where the record