United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
Court has reviewed the parties' briefing concerning
Defendants' “Motion to Dismiss Plaintiffs'
First Amended Complaint with Prejudice” (Doc.
For the reasons set forth herein, the Court will deny
Defendants' Motion (Doc. 50).
a personal injury action originally filed in the U.S.
District Court, Central District of California. Upon
Plaintiffs' unopposed Motion for Change of Venue, the
case was transferred to the District of Arizona in April
2017. (Docs. 16, 21). In July 2017, the parties met and
conferred in accordance with Federal Rule of Civil Procedure
26(f). (Doc. 38). The Court subsequently issued a Case
Management Order (Doc. 39). The Court set April 2, 2018 as
the discovery deadline. (Id. at 2).
April 4, 2018, Defendants filed a Motion to Compel Discovery
(Doc. 43) alleging that Plaintiffs failed to respond to
discovery propounded in June 2017. Plaintiffs did not respond
to the Motion to Compel. On April 26, 2018, the Court granted
the Motion to Compel and ordered Plaintiffs to respond to the
propounded discovery no later than May 4, 2018. (Doc. 48). It
is undisputed that Plaintiffs did not respond to the
discovery by this deadline.
explain that Eva Hollands, who was the initial attorney
assigned to the case, left the firm in December 2017. (Doc.
51 at 4). Purportedly, the case was not reassigned within the
firm to Plaintiffs' current counsel of record, Joseph
Wangler, until March 2018. (Id.). Mr. Wangler,
explains that because he was not admitted to practice in the
District of Arizona, he had to obtain pro hac vice
admission before he could appear in the case. (Id.
at 8). In his April 5, 2018 letter to defense counsel, Mr.
Wangler states that “[d]ue to an internal
miscommunication in [his] office, ” he had not formally
sought pro hac vice admission to the District of
Arizona, but anticipated that it would be done by the next
day. (Id. at 67). Mr. Wangler's letter also
addresses Defendants' Motion to Compel, conveying
Plaintiffs' “position that the discovery requests
in question were propounded improperly before the
FRCP Rule 26 Initial Case Conference and the FRCP Rule 16(b)
Scheduling Order.” (Id.) (emphasis in
original). Mr. Wangler then states that there is no issue
with providing the discovery responses and that the responses
are prepared, he is “just waiting on the pro hac
application to be submitted . . . .” (Id.).
9, 2018, Defendants filed the pending Motion to Dismiss (Doc.
50), which requests that the Court dismiss this action with
prejudice as a sanction for Plaintiffs' alleged continued
failure to respond to discovery. Plaintiffs have provided a
copy of a May 9, 2018 letter from Ms. Hollands to defense
counsel regarding the Motion to Dismiss. (Doc. 51 at 70-71).
In her letter, Ms. Hollands notes that Mr. Wangler “is
still waiting for documentation from the Central District of
California in order to complete the pro hac vice
process.” (Id. at 71). Ms. Hollands'
letter states that Plaintiffs' discovery responses are
enclosed. (Id.). On May 21, 2018, Mr. Wangler wrote
defense counsel, explaining that his application for pro
hace vice admission was approved and that he has caused
Plaintiffs' discovery responses to be re-generated under
his name and signature. (Id. at 73). Mr.
Wangler's letter also states that he is producing to
defense counsel all responsive documents in Plaintiffs'
possession, custody, or control. (Id.).
to Federal Rule of Civil Procedure 37(b)(2)(A), the Court may
issue appropriate sanctions when a party fails to comply with
discovery orders. The Court has broad discretion in issuing
the appropriate sanction. However, a case-dispositive
sanction is appropriate only if the plaintiff's
noncompliance is “due to willfulness, bad faith or
fault.” Henry v. Gill Industries, 983 F.2d
943, 946 (9th Cir. 1993) (citation omitted). This requirement
does not require a finding of wrongful intent or any
particular mental state. Rather, “[d]isobedient conduct
not shown to be outside the control of the litigant is
sufficient to demonstrate willfulness, bad faith, or
fault.” Jorgensen v. Cassiday, 320 F.3d 906,
912 (9th Cir. 2003) (citation omitted).
Ninth Circuit has “constructed a five-part test, with
three subparts to the fifth part, to determine whether a
case-dispositive sanction under Rule 37(b)(2) is
just[.]” Connecticut Gen. Life Ins. Co. v. New
Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir.
2007). The factors are as follows:
(1) the public's interest in expeditious resolution of
(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. The sub-parts of
the fifth factor are whether the court has considered lesser
sanctions, whether it tried them, and whether it warned the
recalcitrant party about the possibility of case-dispositive
Id. (footnotes omitted). The Ninth Circuit has
explained that the above “‘test' is not
mechanical. It provides the district court with a way to
think about what to do, not a set of conditions precedent for
sanctions or a script that the district court must
most critical factor to be considered in case-dispositive
sanctions is whether a party's discovery violations make
it impossible for a court to be confident that the parties
will ever have access to the true ...