United States District Court, D. Arizona
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' “Motion for
Fed.R.Civ.P. Rule 37(b)(2)(A) Sanctions.” (Doc. 74.)
Plaintiffs request that the Court strike Defendants'
answer and enter default pursuant to Rule 37(b)(2)(A).
(Id. at 2.) Defendants did not oppose
Plaintiffs' request for sanctions, however, at the
December 17, 2018 hearing on Plaintiffs' Motion,
Defendants requested that the Court enter a less drastic
sanction than requested by Plaintiffs. For the following
reasons, the Court will grant Plaintiffs' Motion in part
as discussed within the body of this Order.
February 1, 2018, Plaintiffs served Defendants with the
discovery requests at issue. (Doc. 53 at 1; see also
Doc. 40.) Defendants did not respond to the requests within
the time set by the rules. Discovery closed on April 30,
2018. (Doc. 45). On July 27, 2018, after numerous attempts to
obtain the discovery informally, Plaintiffs filed a Motion to
Compel Discovery Responses. (Doc. 53.) Defendants did not
oppose Plaintiffs Motion.
September 17, 2018 hearing on Plaintiffs' Motion to
Compel, counsel for Defendants conceded there was no reason
why the responses should not be made. Defense counsel
explained that the delay was caused, in part, by the
departure of a paralegal in April 2018. The Court granted
Plaintiffs' Motion to Compel and also granted Plaintiffs
leave to submit a request for payment of related attorney
fees and costs. (Doc. 69.) Thereafter, the parties agreed
upon fees to be paid to Plaintiffs' counsel. (Doc. 74 at
1.) The Court subsequently granted Defendants' unopposed
request for extension of time to comply with the motion to
compel (Doc. 72.) Although Defendants filed an October 15,
2018 Notice of Service (Doc. 73) indicating they had served their
responses, the responses were not complete (see Doc.
74, Exs. A, B.) Instead of providing complete responses,
Defendants indicated that they “Will supplement”
many of the responses. (Doc. 74, Exs. A, B.)
October 25, 2018, Plaintiffs filed the instant Motion, which
Defendants did not oppose. Plaintiffs' Motion was
initially set for hearing on December 6, 2018. (Docs. 75,
76.) Because defense counsel was unavailable on December 6,
2018, the hearing was reset to December 17, 2018 (Doc. 77.)
Prior to the hearing, on December 13, 2018, Defendants filed
a Notice of Service indicating they served their “First
Supplemental Response[s]” to Plaintiffs' requests.
(Doc. 80.) At the December 17, 2018 hearing, Defendants'
proffered counsel's oversight as the excuse for their
non-responsiveness to the instant motion for sanctions and
their untimely compliance with the Court's order granting
Plaintiff's motion to compel. Defendants assert the
appropriate sanctions should be limited to Plaintiffs'
attorney fees and costs, supplementation of the pretrial
order, and supplementation of Plaintiffs' experts'
opinions without objection from the defense.
Court disagrees with Defendants. A more severe sanction is
appropriate in light of Defendants' repeated failure to
respond to Plaintiffs' discovery requests. Rule 37(b)(2)
of the Federal Rules of Civil Procedure provides for
sanctions in cases where a party fails to comply with the
court's order compelling discovery. Under Rule 37(b)(2),
the court may in its discretion impose appropriate sanctions,
including: (i) the establishment of designated facts; (ii)
preclusion of supporting or opposing claims or defenses, or
introduction of evidence; (iii) striking pleadings; (iv) staying
proceedings until the order is obeyed; (v) dismissing the
action or proceeding or any part thereof; (vi) rendering a
judgment by default against the disobedient party; or (vii) a
finding of contempt. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii);
see also Marquis v. Chrysler Corp., 577 F.2d 624,
642 (9th Cir. 1978). The rule also provides for the payment
of expenses related to the failure. Fed.R.Civ.P. 37(b)(2)(C).
the Court finds that partial default-in the form of legal
conclusion related to the subject matter of the discovery at
issue-is appropriate. The delayed responses pertained to the
purported basis for Defendant Sherman's stop of a vehicle
near Plaintiffs' home that ultimately led to the
detention of Plaintiffs outside their home. Therefore, the
Court will preclude Defendants from offering a justification
for the stop of the subject vehicle and will instruct the
jury that the stop was not supported by reasonable suspicion.
The sanction is supported by consideration of the following
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 other party; (4)
the public policy favoring the disposition of cases on their
merits; and (5) the availability of less drastic sanctions.
Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th
Cir. 2011) (internal quotation marks and citation omitted).
See also Henry v. Gill Indus. 983 F.2d 943, 946 (9th
Cir. 1993) (“Where the drastic sanctions of dismissal
or default are imposed, . . . the range of discretion is
narrowed and the losing party's noncompliance must be due
to willfulness, fault, or bad faith.”)..
a court order is violated, the first and second factors . . .
favor sanctions and the fourth . . . cut[s] against
them.” Computer Task Group, Inc. v. Brotby,
364 F.3d 1112, (9th Cir. 2004). Therefore, the Court focuses
on the third and fifth factors. As to third factor of
prejudice, “[f]ailure to produce documents as ordered .
. . is considered sufficient prejudice.” Id.
at 1116 (internal quotation marks and citation omitted).
Further, “[b]elated compliance with discovery orders
does not preclude the imposition of sanctions. Last-minute
tender of documents does not cure the prejudice to opponents
nor does it restore to other litigants on a crowded docket
the opportunity to use the courts.” Payne v. Exxon
Corp., 121 F.3d 503, 508 (9th Cir. 1997) (internal
quotation marks and citation omitted). The tardy discovery
responses were served after close of discovery, after expert
disclosure, after the filing of the pretrial order, and just
over a month before trial. Plaintiffs were therefore deprived
of a meaningful opportunity to follow up on that information
or to fully incorporate it into their litigation strategy.
the availability of less drastic sanctions, Plaintiffs assert
that preclusion of the responses is not an effective sanction
because the responses are more helpful to Plaintiffs and not
helpful to the Defendants. Moreover, less drastic sanctions
appear meaningless. The Court's entry of an order
compelling Defendants to serve the responses, an extension of
time to comply with that order, and the award of fees to
Plaintiffs did not achieve Defendants compliance.
argument that that the imposition of sanctions penalizes the
individual defendants for counsel's conduct is not
persuasive on the instant facts. “In recognizing the
relative hardship upon [the individual Defendants] . . . as
distinguished from counsel, it must be kept in mind that
district courts cannot function efficiently unless they can
effectively require compliance with reasonable rules. Absence
of meaningful power to require that compliance would make for
disorder and preclude effective judicial administration at
the trial court level.” Chism v. Nat'l Heritage
Life Ins. Co., 637 F.2d 1328, (9th Cir. 1981),
overruled on other grounds by Bryant v. Ford Motor
Co., 844 F.2d 602 (9th Cir.1987). While “the
degree of a plaintiff's personal responsibility for
malfeasance is relevant to the propriety of dismissal[,
]” Maloe v. U.S. Postal Service, 833 F.2d 128,
134 (9th Cir. 1987), in light of the continued
non-responsiveness until the eleventh hour, a partial default
is appropriate. Thus, the Court will preclude Defendants from
introducing the untimely disclosure and will instruct the
jurors that Officer Sherman lacked reasonable suspicion to
stop the vehicle in front of Plaintiffs' house.
Plaintiffs may elect to whether to introduce or use the late
provided disclosure. The Court will further order Plaintiffs
be compensated for costs associated with the motion.
foregoing reasons, IT IS ORDERED that Plaintiffs'
“Motion for Fed.R.Civ.P. Rule 37(b)(2)(A)
Sanctions” (Doc. 74) is GRANTED as stated in this
FURTHER ORDERED that Plaintiffs are entitled to costs and
attorney fees associated with the motion (Doc. 74) and may