Lee v. Del Mar Thoroughbred Club, No. 3:2012cv00826 - Document 58 (S.D. Cal. 2013)
Court Description: ORDER Denying Defendant's Motion For Reconsideration And Motion To Dismiss (Re Docs. 44 , 45 ): The Court DENIES Defendant's motion for reconsideration and CONFIRMS the order dated 3/25/2013 (Doc. 41 ) requiring Plaintiff to pay the 6;2,035.00 sanction to Defendant by 7/16/2013. The Court also DENIES Defendant's motion for additional monetary sanctions based upon the costs incurred by Defendant in filing the motion for reconsideration. The Court DENIES Defendant's second motion to dismiss. Signed by Magistrate Judge Barbara Lynn Major on 5/6/2013. (mdc)
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Lee v. Del Mar Thoroughbred Club Doc. 58 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH LEE, Plaintiff, 12 13 v. 14 DEL MAR THOROUGHBRED CLUB, Defendant. 15 16 ) ) ) ) ) ) ) ) ) ) ) Case No. 12CV826-WQH (BLM) ORDER DENYI NG DEFENDANT’S MOTI ON FOR RECONSI DERATI ON AND MOTI ON TO DI SMI SS [ ECF Nos. 44 & 45] 17 Currently before the Court is Defendant’s March 28, 2013 Motion for Reconsideration of 18 the Court’s March 26, 2013 Order and Request for Additional Monetary Sanctions to Enforce 19 Compliance [ ECF No. 44 (“Def.’s Mot.”)] , Defendant’s Motion to Dismiss [ ECF No. 45 (“MTD”)] , 20 Plaintiff's April 17, 2013 opposition to the Motion to Dismiss [ ECF No. 46 (“MTD Oppo.”)] , 21 Plaintiff's April 18, 2013 opposition to the Motion for Reconsideration [ ECF No. 48 ("MFR 22 Oppo.")] , and Defendant's April 22, 2013 replies to Plaintiff’s opposition to the Motion to Dismiss 23 [ ECF No. 52 ("MTD Reply")] and opposition to the Motion for Reconsideration [ ECF No. 53 (“MFR 24 Reply”)] . 25 26 For the reasons set forth below, Defendant’s motions are DENI ED. BACKGROUND 27 On April 4, 2012, Plaintiff, Joseph Lee, filed a complaint in this Court alleging retaliation 28 in violation of the Americans With Disabilities Act (“ADA”), Unruh Civil Rights Act, and California 12CV826-WQH(BLM) Dockets.Justia.com 1 Disabled Persons Act. ECF No. 1. Plaintiff claims that Defendant is retaliating against him due 2 to a previous lawsuit that he brought against Defendant in 2011 (Case No. 11cv459-WQH 3 (BLM)). 4 handicapped accessible parking spaces and was settled on a confidential basis. Id. at 2. The 5 parking spaces are again at issue in the instant matter. Id. Plaintiff states that “as a direct and 6 proximate result of Defendant’s actions in redesigning the parking spaces, Plaintiff can no longer 7 park in a space that would give him close access to Defendant’s facility.” Id. Defendant 8 answered the complaint on May 22, 2012 [ ECF No. 5] and the Court held an Early Neutral 9 Evaluation (“ENE”) on July 2, 2012. ECF No. 9. Id. at 1. The previous lawsuit concerned Plaintiff’s ability to park in designated 10 On November 19, 2012, Plaintiff contacted chambers via email to request that the 11 November 26, 2012 deadline to lodge a joint discovery plan with chambers be continued. ECF 12 No. 20. In support, Plaintiff stated that he did not receive the Court’s November 2, 2012 Order 13 Directing Rule 26 Compliance and Setting Case Management Conference [ ECF No. 18] until 14 November 16, 2012, when opposing counsel provided him with a copy during their meet and 15 confer. ECF No. 20. The request was denied by the Court as Plaintiff failed to properly file the 16 request and because Plaintiff admitted to having received the order setting the deadline which 17 was mailed to his correct address and provided to him by opposing counsel. Id. Defendant filed 18 its Initial Disclosures on November 26, 2012 and filed a motion to dismiss with a January 7, 2013 19 hearing date in front of Judge William Q. Hayes on November 30, 2012. ECF Nos. 21 & 22. The 20 Court held a telephonic CMC on December 5, 2012 [ ECF Nos. 24 & 25] and Plaintiff filed a motion 21 to substitute counsel (Mr. Craig Castle) on December 14, 2012 [ ECF No. 26] that was granted 22 on December 26, 2012 [ ECF No. 27] . 23 On January 2, 2013, Plaintiff filed an Ex Parte Motion to Continue Hearing of Defendant’s 24 Motion to Dismiss. ECF No. 28. 25 pending Motion to Dismiss [ ECF No. 22] and Ex Parte Motion to Continue Hearing of Defendant’s 26 Motion to Dismiss [ ECF No. 28] to Magistrate Judge Barbara L. Major. ECF No. 30. The Court 27 granted the continuance on January 7, 2012 [ ECF No. 31] and on February 25, 2013, entered 28 an Order granting in part and denying in part Defendant’s motion. ECF No. 38. In that order, On January 3, 2013, Judge William Q. Hayes referred the 2 12CV826-WQH(BLM) 1 the Court denied Defendant’s request to dismiss the case or to preclude Plaintiff from introducing 2 evidence on certain matters, but granted Defendant’s request for monetary sanctions. Id. at 5-7. 3 Specifically, the Court ordered Plaintiff to pay Defendant $2,035.00 by March 18, 2013 and to 4 file a Notice of Payment with the Court by March 22, 2013. Id. at 7. Plaintiff was warned that 5 “[ f] ailure to pay said sum may result in the imposition of additional sanctions.” Id. 6 On March 22, 2013, Plaintiff filed an Ex Parte Motion to Extend Time to Make Payment of 7 Monetary Sanctions. ECF No. 40. Plaintiff sought an additional 120 days to comply with the 8 Court’s order due to financial hardship. Id. at 3. The Court granted Plaintiff’s motion on March 9 25, 2013. Shortly after the order issued, defense counsel contacted the Court and stated that 10 she was completing an opposition to Plaintiff’s motion that she planned to file and the chamber’s 11 law clerk stated that was acceptable. The next day, Ms. Pat Cartwright called from defense 12 counsel’s office to obtain a hearing date for the opposition. The chamber’s law clerk provided 13 Ms. Cartwright with a hearing date and informed her that at this point, Defendant needed to file 14 a motion for reconsideration instead of an opposition. 15 understood, but instead of filing a motion for reconsideration, Defendant filed an 16 opposition/ motion to dismiss on March 26, 2013. ECF No. 42; Def.’s Mot. at 4. The Court issued 17 an order striking Defendant’s opposition/ motion to dismiss and setting a deadline to file a motion 18 for reconsideration as instructed and/or a motion to dismiss. ECF No. 43. Ms. Cartwright indicated that she Defendant timely file a motion for reconsideration and motion to dismiss on March 28, 19 20 2013. Def.’s Mot. & MTD. 21 I. 22 MOTI ON FOR RECONSI DERATI ON Legal Standard 23 Pursuant to Local Rule 7.1(i)(1), a party may apply for reconsideration "[ w] henever any 24 motion or any application for any order or other relief has been made to any judge and has been 25 refused in whole or in part...." S.D. Cal. Civ.L.R. 7.1(i). The party seeking reconsideration must 26 show "what new or different facts and circumstances are claimed to exist which did not exist, 27 or were not shown, upon such prior application." Id. Local Rule 7.1(i)(2) permits motions for 28 reconsideration within "twenty-eight (28) days of the entry of the ruling." Additionally, pursuant 3 12CV826-WQH(BLM) 1 to Federal Rule of Civil Procedure (“FRCP”) 59(e), a party may file a “motion to alter or amend 2 a judgment . . . no later than 28 days after the entry of the judgment.” 3 Discussion 4 In the motion for reconsideration, Defendant complains that it did not have an opportunity 5 to oppose Plaintiff’s ex parte motion to extend time to pay the monetary sanctions imposed by 6 the Court. Def.’s Mot. at 5. The Court finds this to be an acceptable basis for a motion for 7 reconsideration. However, after considering Defendant’s objections to Plaintiff’s request to 8 extend time, the Court confirms its March 25th order. 9 Defendant argues that Plaintiff should not be granted additional time to pay the monetary 10 sanction imposed by the Court because Plaintiff’s ex parte motion was untimely in that the 11 sanction was to be paid by March 18, 2013 and Plaintiff’s motion was not filed until March 22, 12 2013. Id. at 6. Defendant also disputes Plaintiff’s claims that Plaintiff did not understand that 13 Plaintiff personally had to pay the fine and Plaintiff does not have the financial resources to pay 14 the fine within the allotted time period. Id. at 6-7. In support of this position, Defendant argues 15 that Plaintiff had a lawyer who should have explained the sanction to Plaintiff and Plaintiff does 16 have the resources to pay the fine because Plaintiff gambles at the Del Mar Racetrack on a 17 regular basis. Id. Defendant also seeks an additional monetary sanction of $2,035 for the costs 18 Defendant incurred in filing the instant motion for reconsideration. Id. at 8. 19 Plaintiff responds that Defendant’s motion “does not present any new facts to justify 20 reconsideration of the motion.” MFR Oppo. at 8. In its reply, Defendant argues that the Court 21 should not consider Plaintiff’s opposition to the motion for reconsideration because it was 22 untimely. MFR Reply at 1. In support, Defendant states that Plaintiff’s opposition was due on 23 April 15, 2013, but not filed until April 18, 2013. Id. at 1-2. 24 While Plaintiff’s motion to obtain additional time to pay the monetary sanction was filed 25 several days after the deadline to pay the sanction, the Court still finds it appropriate to give 26 Plaintiff the additional time to pay the monetary sanction. 27 explained that he is “a 65 year old retired, disabled combat service-connected United States 28 Marine Corps Vietnam Veteran [ who has] been diagnosed with and suffer[ s] from cervical 4 In Plaintiff’s request, Plaintiff 12CV826-WQH(BLM) 1 myelopathy, Spinal Cord injuries, partial paralysis in the right side of [ his] body, and other 2 ailments that significantly impair [ his] ability to walk without a mobility aid [ and who has] been 3 determined to be totally disabled by the federal and state government.” Declaration of Joseph 4 Lee, ECF No. 40-1 at 2. Plaintiff provided information regarding his income and expenses and 5 stated that given his financial situation, the court’s order “creates an undue hardship for me as 6 I do not have the economic resources to pay said sum within the allotted time.” Id. 7 Given that Plaintiff is not disputing that he has the ability to pay the sanction, only that 8 he did not have the ability to pay the sanction within the limited amount of time originally 9 provided by the Court, the Court finds that Defendant’s arguments do not change the Court’s 10 original decision that it was appropriate to give Plaintiff additional time to pay the court-imposed 11 sanction. 12 CONFI RMS the order dated March 25, 2013 [ ECF No. 41] requiring Plaintiff to pay the $2035.00 13 sanction to Defendant by July 16, 2013. The Court also DENI ES Defendant’s motion for 14 additional monetary sanctions based upon the costs incurred by Defendant in filing the motion 15 for reconsideration. 16 II. Accordingly, the Court DENI ES Defendant’s motion for reconsideration and MOTI ON TO DI SMI SS 17 In its latest motion to dismiss, Defendant argues that dismissal of the entire case is 18 appropriate due to Plaintiff’s “numerous violations of this Court’s orders.” MTD at 4. In support 19 of this statement, Defendant argues that plaintiff has violated this Court’s Order on three 20 occasions thus far (failure to file timely Initial Disclosure twice and failure to pay Court-ordered 21 sanctions).” Id. (emphasis in original). Plaintiff responds by stating that his counsel’s failure to 22 timely reply was “a result of his mistake, inadvertence and/ or excusable neglect” and that 23 Plaintiff should not be penalized “for the carelessness of [ his] counsel.” MTD Oppo. at 3-5. 24 Plaintiff further states that dismissing Plaintiff’s case for not timely complying with the Rule 26 25 Order would “be tantamount to a miscarriage of justice.” Id. at 6. 26 In its reply, Defendant argues that the Court should not consider Plaintiff’s opposition to 27 the motion to dismiss because it was filed two days late on April 17, 2013 and “robbed 28 5 12CV826-WQH(BLM) 1 [ Defendant of] three days of time” to prepare its reply.1 MTD Reply at 2. 2 Legal Standard 3 The Federal Rules of Civil Procedure state that a defendant may move for dismissal of an 4 action or claim for a plaintiff's failure "to prosecute or to comply with [ the Federal Rules] or a 5 court order. . . . Unless the dismissal order states otherwise, a dismissal under this subdivision(b) 6 . . . operates as an adjudication on the merits." Fed. R. Civ. P. 41(b). Further, under Rule 7 37(c)(1), "[ i] f a party fails to provide information or identify a witness as required by Rule 26(a) 8 or (e), the party is not allowed to use that information or witness to supply evidence on a 9 motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." 10 In addition to disallowing the use of that evidence, "the court, on motion and after giving an 11 opportunity to be heard: (A) may order payment of the reasonable expenses, including attorney's 12 fees, caused by the failure; (B) may inform the jury of the party's failure; and (C) may impose 13 other appropriate sanctions," including "(i) directing that the matters embraced in the order or 14 other designated facts be taken as established for purposes of the action, as the prevailing party 15 claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or 16 defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole 17 or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action 18 or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient 19 party; or (vii) treating as contempt of court the failure to obey any order except an order to 20 submit to a physical or mental examination." Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi) & 37(c)(1)(A-C). 21 Dispositive sanctions such as dismissal of the complaint are "authorized only in extreme 22 circumstances and only where the violation is due to willfulness, bad faith, or fault of the party." 23 In re The Exxon Valdez, 102 F.3d 429, 432 (9th Cir. 1996) (quoting United States v. Kahaluu 24 Const., 857 F.2d 600, 603 (9th Cir. 1988)). In determining whether to issue a default or 25 dismissal of a party's action pursuant to Rule 37(b) or 41(b), the Court must consider the 26 following five factors: "(1) the public's interest in expeditious resolution of litigation; (2) the 27 28 1 Defendant did not file a motion seeking additional time to file its reply in light of Plaintiff’s untimely opposition. See Docket. 6 12CV826-WQH(BLM) 1 court's need to manage its dockets; (3) the risk of prejudice to the [ party seeking sanctions] ; (4) 2 the public policy favoring disposition of cases on their merits; and (5) the availability of less 3 drastic sanctions." Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) 4 (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)); see also Pagtalunan 5 v. Galaza, 291 F. 3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F. 2d 1258, 1260 6 ((9th Cir. 1992)). This test is a disjunctive balancing test, so not all five factors must support 7 dismissal. See Bolden v. Los Angeles County Sheriff, 2008 WL 1969230, * 4 (C.D. Cal. April 30, 8 2008) (citing Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)) (explaining that 9 dismissal is appropriate when four factors support dismissal or where three factors "strongly" 10 support dismissal). “The first two of these factors favor the imposition of sanctions in most 11 cases, while the fourth cuts against a default or dismissal sanction. Thus the key factors are 12 prejudice and availability of lesser sanctions.” Stars’ Desert Inn Hotel & Country Club, Inc. V. 13 Hwang, 105 F. 3d 521, 524 (9th Cir. 1997). 14 Discussion 15 Plaintiff acknowledges that he failed to comply with the initial disclosure deadline but 16 correctly states that he already was sanctioned for that failure and that the Court determined 17 dismissal was not an appropriate sanction. MTD Oppo. at 2. With regard to the second initial 18 disclosure deadline, Plaintiff’s counsel explains that he inadvertently miscalendared the deadline 19 and therefore the disclosures were 3 days late. Id. at 4. Counsel argues that the missed 20 deadline was inadvertent and/ or excusable neglect and does not warrant dismissal of the 21 pending case. Id. at 3-7. With regard to the failure to timely pay the monetary sanction, 22 Plaintiff argues that Plaintiff did not have the ability to pay and the Court granted his motion 23 seeking additional time to pay the sanction so he currently is not in violation of a Court order. 24 Id. at 2-3. 25 As stated above, dismissal of the complaint is only permitted in extreme circumstances 26 and only where the violation is due to “willfulness, bad faith, or fault of the party." In re The 27 Exxon Valdez, 102 F.3d at 432. After considering the five factors, the Court finds that dismissal 28 is not appropriate in this case. As is typical, here, the first two factors support dismissal since 7 12CV826-WQH(BLM) 1 dismissal would result in the expeditious resolution of the litigation result and support the Court’s 2 need to manage its docket. However, the remaining three factors do not support dismissal. As 3 in most cases, public policy favors disposition of this case on the merits. With regard to the third 4 and fifth factors, Defendant has not been prejudiced by Plaintiff’s failures and less drastic 5 sanctions are available. Specifically, with regard to Plaintiff’s initial failure to timely provide initial 6 disclosures, the Court determined that a monetary sanction, rather than dismissal, was the 7 appropriate resolution and the Court stands by that determination. See ECF No. 38. With regard 8 to the second deadline for initial disclosures, Plaintiff’s submission was only three calendar days 9 or one court day late. With regard to the failure to timely pay the court-ordered sanctions, 10 Plaintiff’s motion for additional time was only four days late and was filed on the day Plaintiff was 11 required to file his notice of payment. While untimely, neither of these short delays prejudiced 12 Defendant and the alleged violations, even considered with the initial failure to provide initial 13 disclosures, do not constitute a repeated failure to comply with court orders justifying dismissal 14 of the instant case. See Carrillo v. City of Fresno, 2007 WL 1574949 (E.D. Cal. May 30, 2007) 15 (denying Defendants’ request for reconsideration of the order denying Defendants’ motion to 16 dismiss the action for Plaintiff’s failure to comply with discovery and court orders imposing 17 monetary sanctions where: (1) Plaintiff did not respond to defense counsel’s correspondence 18 about discovery, failed to participate in preparing the joint scheduling report, twice did not 19 comply with court orders to provide initial disclosures, provided incomplete and belated 20 document production responses, and untimely paid his $740.00 sanction; (2) Plaintiff’s conduct 21 was not outside of his control; and (3) Defendants failed to show that they were prejudiced by 22 Plaintiff’s failure to timely comply with discovery procedures and court orders). In addition, the 23 Court imposed monetary sanctions for Plaintiff’s initial discovery violation and finds that that 24 sanction was appropriate and sufficient. With regard to the two subsequent violations, each 25 consisting of only a several day delay in compliance, the Court finds that no sanction is necessary 26 or appropriate given the facts of the instant case. After considering all of the relevant facts and 27 weighing all of the factors, the Court finds that dismissal is not appropriate or warranted. 28 In addition, with respect to Plaintiff’s failure to pay his Court-ordered monetary sanction, 8 12CV826-WQH(BLM) 1 Plaintiff filed a declaration stating that he was unable to pay the sanction within the short time 2 period ordered by the Court. ECF No. 40-1, Declaration of Joseph Lee at 1-3. Plaintiff supported 3 his statement by stating that he makes $3,152.00 per month and has living expenses of 4 $2,800.00 per month. Id. at 2. There is no evidence of bad faith on the part of Plaintiff in failing 5 to pay the sanction on March 18, 2013 and the Court declines to consider this failure sufficient 6 for dismissal even when considered with Plaintiff’s other failures. To dismiss the case due to 7 Plaintiff’s inability to pay his sanction in the time frame initially set by the Court would be 8 improper. See Thomas v. Gerber Productions, 703 F.2d 353, 356 (9th Cir.1983) (reversing order 9 of dismissal in action where District Court abused its discretion by imposing a requirement that 10 the Court had been informed could not be performed (a $750.00 sanction), and then dismissing 11 Plaintiff’s case when he did not have the ability to pay the sanction and there was no evidence 12 of bad faith in his refusal to pay). 13 Accordingly, the Court DENI ES Defendant’s second motion to dismiss. 14 I T I S SO ORDERED. 15 16 DATED: May 6, 2013 17 18 19 BARBARA L. MAJOR United States Magistrate Judge 20 21 22 23 24 25 26 27 28 9 12CV826-WQH(BLM)
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