Joshua David Mellberg, LLC v. Will

          REPORT AND RECOMMENDATION

          Honorable Lynnette C. Kimmins United States Magistrate Judge.

         Pending before the Court is Plaintiffs' Motion to Strike Answer of Defendant Arceo and Enter Default. (Doc. 449.) Defendants Impact Partnership, Will, Fine, Godinez, and Uretz objected (Docs. 463, 464), and Plaintiffs replied (Doc. 473). Defendant Arceo was served with the motion at his address of record, submitted on March 5, 2019 (Docs. 401, 449 at 9), but did not respond to the motion. Because Plaintiffs' motion requests a sanction pursuant to Federal Rule of Civil Procedure 37(b)(2)(A), the undersigned issues a report and recommendation. See LRCiv 72.2(a)(1). The Magistrate Judge recommends the District Court, after its independent review of the record, grant Plaintiffs' motion.

         DISCUSSION

         When Defendant Arceo failed to respond to Plaintiffs' discovery requests, they moved to compel his response in July 2017. (Doc. 140.) After no response from Defendant Arceo, the Court ordered him to respond to the discovery and warned him that, if he failed to comply, Plaintiffs could move to strike his answer and request the entry of default. (Doc. 158 at 4, 5.) Defendant Arceo has not complied with the Court's Order or provided a response to Plaintiffs' discovery requests.

         Rule 37 permits sanctions when a party fails to comply with a discovery order, including the striking of a party's pleading. Fed.R.Civ.P. 37(b)(2)(A)(iii). Because Defendant Arceo never responded to Plaintiffs' discovery requests, after the Court ordered him to do so, sanctions are warranted. Before striking a party's pleading and entering default, the Court must consider: “(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.” Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1169 (9th Cir. 2012) (quoting Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir. 2011)). “Where a court order is violated, the first two factors support sanctions and the fourth factor cuts against a default. Therefore, it is the third and fifth factors that are decisive.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990); see also Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990) (“[T]he key factors are prejudice and availability of lesser sanctions.”).

         Because Defendant Arceo did not participate in any discovery, his actions have prejudiced Plaintiffs ability to prosecute their case against him. See Wanderer, 910 F.2d at 656 (finding prejudice “palpable” when the defendants repeatedly failed to produce documents or appear at their depositions). The Court previously ordered Defendant Arceo to respond to Plaintiffs' discovery requests and awarded fees against him for the motion to compel. Since that time, Defendant Arceo has not participated in the litigation and did not oppose Plaintiffs' requested sanction. Discovery closed last year and reopening it now would cause substantial delay to final resolution of this aging case. Further, there is no reason to believe that, if given the opportunity, Defendant Arceo would participate in discovery. Because Defendant Arceo's actions indicate he does not wish to defend against Plaintiff's complaint, the Court finds no less drastic sanctions are feasible.

         Four of the five factors favor striking Defendant Arceo's Answer and entering his default. While this sanction precludes resolution of the claims against him on the merits, his behavior offers no alternative. In the last two years, Defendant Arceo has refused to participate in the litigation despite the Court ordering him to do so. Even if the Court allowed his Answer to stand, it appears he would not defend the case on the merits. Therefore, application of the five-part test indicates that striking Defendant Arceo's Answer and entering default is an appropriate sanction.

         Finally, before entering default as a sanction, the Court must find Defendant Arceo's violation was “due to willfulness, bad faith, or fault of the party.” Hester, 687 F.3d at 1169 (quoting Jorgensen v. Cassiday, 320 F.3d 906, 912 (9th Cir. 2003)). Plaintiffs' counsel made numerous attempts to confer with Defendant Arceo about the requested discovery prior to moving to compel. (Doc. 449-1 ¶ 2.) This included phone calls, one of which was returned by Mr. Arceo. (Doc. 140-1 ¶ 8.) The discovery requests, motion to compel, and the Court's Order granting the motion to compel were all sent (and not returned) to Defendant Arceo's address of record at the time.^[1] In February 2019, Plaintiffs' counsel spoke to Defendant Arceo by telephone and discussed the possible consequences for his failure to comply with the Court's Order. (Id. ¶ 6.) Because Defendant Arceo is aware of the requested discovery, as well as the Court's order that he respond to Plaintiffs' requests, the Court concludes his failure to respond to discovery and comply with the Court's Order was willful and that he is at fault for the violation.

         Defendants oppose Plaintiffs' motion, arguing that granting a default judgment at this stage of the litigation risks inconsistent judgments. (Doc. 463.) In their Reply, Plaintiffs clarified that they are requesting only entry of default and not a default judgment. (Doc. 473 at 3 n.4.) For that reason, the Court does not address the arguments set forth in Defendants' opposition.

         RECOMMENDATION

         Based on the foregoing, the Magistrate Judge recommends that the District Court enter an order granting Plaintiffs' motion (Doc. 449). In turn, the Magistrate Judge recommends the District Court direct the Clerk of Court to strike Defendant Arceo's Answer (Doc. 81) and enter Defendant Arceo's default.

         Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived.

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