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Olive v. Robinson

United States District Court, W.D. Washington, Seattle

June 18, 2019

OSCAR LEE OLIVE, IV, Plaintiff,
v.
HAYLEY MARIE ROBINSON, JUSTUS KEPEL, Defendants.

          ORDER GRANTING MOTION FOR SANCTIONS

          Brian A. Tsuchida, Chief United States Magistrate Judge.

         Plaintiff 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 Cause.

         Due to Defendants' complete disregard of discovery procedures and this Court's orders, Plaintiff's motion for sanctions shall be granted, in part, as detailed herein.

         RELEVANT PROCEDURAL BACKGROUND

         On June 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.

         On 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.

         On 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.

         On 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.

         On June 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 Court's Order.

         DISCUSSION

         Pursuant 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).

         In 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 party. Id.

         “‘Disobedient 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 evidence ...


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