Hatton et al v. Bank of America N.A et al, No. 1:2015cv00187 - Document 114 (E.D. Cal. 2017)

Court Description: ORDER denying 110 Motion to continue Trial and granting 107 Motion for Terminating Sanctions signed by Magistrate Judge Erica P. Grosjean on 11/15/2017. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 P. ORB HATTON and DIANE HATTON, Plaintiffs, 12 v. 13 14 BSI FINANCIAL SERVICES, 15 Case No. 1:15-cv-00187-EPG ORDER DENYING PLAINTIFFS’ MOTION TO CONTINUE TRIAL, AND GRANTING DEFENDANT’S MOTION FOR TERMINATING SANCTIONS (ECF Nos. 107, 110) Defendant. 16 17 This case has been pending for more than two years. Plaintiffs’ case against one 18 19 defendant has already been resolved, and one defendant, BSI Financial Services (“BSI”), remains. 20 After multiple extensions of the schedule, the current trial date is March 27, 2018. The case has 21 hit a standstill, however, as Plaintiffs are unwilling to sit for their depositions. Plaintiffs have 22 requested further extensions of the schedule, (ECF No. 110), whereas BSI has requested 23 terminating sanctions, pursuant to Fed. R. Civ. P. 41(b), based on Plaintiffs’ failure to appear for 24 their depositions. (ECF No. 107). Because Plaintiffs have failed to comply with court orders and have failed to show good 25 26 cause to further modify the scheduling order, the Court DENIES Plaintiffs’ motion to continue 27 the date of trial, and GRANTS Defendant’s motion for terminating sanctions. 28 \\\ 1 1 I. 2 Plaintiffs P. Orb and Diane Hatton commenced this action on February 4, 2015 against BACKGROUND 3 Bank of America, N.A. and BSI. (ECF No. 1.) On August 18, 2015, the Court issued a scheduling 4 order, initially setting a non-expert discovery cut-off date of March 11, 2016 and a trial date of 5 January 20, 2017. (ECF No. 55.) 6 Since that time, the Court has modified the scheduling order numerous times. On 7 November 15, 2016, based on the stipulation of the parties, the Court modified the scheduling 8 order by setting a non-expert discovery cut-off date of January 6, 2017 and a trial date of 9 September 26, 2017. (ECF No. 81.) 10 11 12 Plaintiffs and Bank of America, N.A. reached a settlement on February 26, 2016. (ECF No. 72) On March 20, 2017, the remaining parties filed a joint motion to further modify the 13 scheduling order to extend all dates by six months. (ECF No. 96.) The parties explained that P. 14 Orb Hatton had been unable to sit for his deposition because, “As a result of the chemotherapy, 15 [Orb Hatton] has a condition named ‘chemo brain’ which is described by the Mayo Institute as 16 ‘chemotherapy-related cognitive impairment or cognitive dysfunction.’ ‘Chemo brain’ sometimes 17 called ‘chemo fog’ describes thinking and memory problems that can occur after cancer 18 treatment.” (ECF No. 96.) Moreover, Diane Hatton filed Chapter 13 Bankruptcy on October 17, 19 2016, and had not obtained leave of the bankruptcy trustee to move forward with litigation. Id. 20 Also, Plaintiffs’ attorney had withdrawn as counsel. Id. at 8. 21 22 23 On March 23, 2017, the Court modified the scheduling order, setting a non-expert discovery cut-off of June 6, 2017 and a trial date of March 27, 2018. (ECF No. 98.) On June 5, 2017, Plaintiffs filed a motion requesting a “4 month postponement of case.” 24 (ECF No. 99.) Plaintiffs explained that “My oncologist, Dr. Lan, has informed me and BSI’s 25 Attorneys, that due to my chemotherapy treatments, my mental capacities are compromised. I am 26 recovering, however not completely.” Id. Plaintiffs also stated that they were awaiting a response 27 to an offer of settlement. Id. Plaintiffs did not attach any medical information or note from a 28 medical professional in their request for a postponement. 2 1 BSI responded to Plaintiffs’ motion, (ECF No. 101), explaining that both Plaintiffs had 2 failed to attend their noticed depositions set for June 5, 2017. Plaintiff Orb Hatton had informed 3 defense counsel that “he is currently recovering from his treatments and still has trouble 4 remembering clearly.” (ECF No. 101, at 2.) No reason was given for the failure of Plaintiff 5 Diane Hatton to attend her deposition. 6 On June 15, 2017, the Court again modified the scheduling order, changing the non-expert 7 discovery cut-off date to September 1, 2017. (ECF No. 102.) In the order extending the schedule, 8 the Court stated “The Court is mindful, however, that this case has been pending for nearly two 9 and a half years at this point and has already received lengthy extensions that are not 10 commensurate with the complexity of the case. Thus, while Plaintiffs’ motion is GRANTED in 11 part, the Court will not grant the parties the entirety of the requested extension, nor will it move 12 the pretrial conference or trial dates. The parties are also advised that, barring extraordinary 13 circumstances, no further extensions of time will be granted.” (ECF No. 102.) 14 On September 6, 2017, a Telephonic Informal Discovery Dispute Conference was held 15 concerning Plaintiffs’ failure to appear for deposition. (ECF No. 104.) Defendant stated that it 16 served seventh amended notices of deposition on Plaintiffs, setting depositions for August 8, 17 2017. Plaintiffs requested an extension, and Defendant agreed to continue the depositions to 18 August 22, 2017. Plaintiffs then requested a further continuance. BSI declined to offer any further 19 continuances. 20 Mr. Hatton stated that he was no longer undergoing chemotherapy, but was concerned that 21 he was experiencing memory issues as a residual effect of the treatment. Mr. Hatton further stated 22 that he intends to sit for deposition, but was awaiting clearance from his physician, who he would 23 see on September 12, 2017. 24 The Court told the parties that it would not move the trial date. But, the Court extended 25 the non-expert discovery deadline to October 11, 2017, and directed Plaintiffs to appear for 26 deposition before expiration of the non-expert discovery period. Id. The parties set a meet and 27 confer for September 14, 2017. The Court directed the Plaintiffs to confer regarding a date for 28 their deposition. The Court stated that Plaintiffs could state on the record any issues with their 3 1 memory that should be noted, but that the depositions must go forward. The Court explained that 2 there would be consequences for Plaintiff’s failure to appear for deposition. The Court also 3 warned that if Plaintiffs did not appear for depositions, dismissal of this action may be warranted. 4 5 On September 26, 2017, the Court granted BSI permission to file a motion for relief, and directed BSI to proceed according to Local Rule 251(e). (ECF No. 106.) 6 Now before the Court are the parties’ respective motions. (ECF Nos. 107, 110.) 7 II. 8 DISCUSSION A. Motion for Continuance of Trial 9 Plaintiffs seek to once again modify the scheduling order to continue the trial, now set for 10 March 27, 2018, to May 2018. (ECF No. 110.) Plaintiffs state that Mr. Hatton suffered a detached 11 retina as a result of a fall on September 25, 2017, and scheduled a required surgery for October 12 16, 2017. Mr. Hatton will require a few weeks recovery after surgery. Plaintiffs further state that 13 BSI has made an offer of settlement which Plaintiffs are considering. 14 Notably, Plaintiffs did not attach any exhibits in support of their motion. Plaintiffs did not 15 include any note from a doctor or other medical professional. Moreover, Plaintiffs have not 16 offered any date for their depositions. Plaintiffs also have not provided any excuse for Diane 17 Hatton’s failure to attend her deposition. 18 BSI opposes Plaintiffs’ motion. (ECF No. 112.) BSI states that it would be prejudiced by a 19 continuance. BSI argues that there is a risk witnesses’ memories will fade and evidence will 20 become stale as this action arises from discussions between Mr. Hatton and a BSI employee, 21 Chris Davis, in December 2014. BSI further argues that it has been unable to defend this action 22 due to Plaintiffs’ inability to sit for deposition. Plaintiffs have been given all reasonable 23 opportunity to prosecute this action, but the action has been indefinitely stalled. Mr. Hatton has 24 not provided any details of the extent, duration or the lasting impact of his mental impairment or 25 his ability to provide testimony. Defendant also states that no settlement negotiations are pending. 26 “A scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly 27 disregarded [ ] without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607–08 (9th 28 Cir. 1992)(citation and quotation omitted). Rule 16(b)(4) of the Federal Rules of Civil Procedure 4 1 allows the Court to modify a scheduling order for good cause. The “good cause” standard 2 “primarily considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 3 609. “The district court may modify the pretrial schedule ‘if it cannot reasonably be met despite 4 the diligence of the party seeking the extension.’” Id. (citing Fed. R. Civ. P. 16 advisory 5 committee’s notes (1983 amendment)). Although “the focus of the inquiry is upon the moving 6 party’s reasons for seeking modification,” a court may make its determination by noting the 7 prejudice to other parties. Id. 8 The Court finds that Plaintiffs have failed to show good cause to further modify the 9 scheduling order. The Court has twice continued the date for trial and has modified the 10 scheduling order four times. In its last extension, it warned all parties that it would not extend the 11 schedule absent extraordinary circumstances. (ECF No. 102.) Although the Court has shown 12 willingness to accommodate Mr. Hatton’s medical needs, it is unwilling to do so again. The 13 Court has repeatedly extended the schedule based on allegations of side effects of medical 14 procedures and assurances that additional time would allow Plaintiffs to comply with their 15 obligations. Yet, Plaintiffs have not participated in their depositions despite these extensions to 16 the schedule. 17 Additionally, Plaintiffs’ current request for yet another postponement is not supported by 18 any evidence from any medical professional. The evidence available to the Court reveals that Mr. 19 Hatton was treated for blurred vision due to corneal scratches on September 18, 2017 and visited 20 an Ophthalmologist on September 21, 2017. (ECF No. 107-1, at 6-9.) That information alone 21 does not support a postponement of the schedule. 22 Moreover, the trial is set from March 27, 2018, more than four months away. As Mr. 23 Hatton requires only a few weeks to recover from the October 16, 2017 procedure, the Court 24 finds that the trial date in this action could reasonably be met despite Mr. Hatton’s medical 25 condition. Accordingly, Plaintiffs’ motion to continue the trial in this action to May 2018 is 26 denied. 27 \\\ 28 \\\ 5 1 2 3 B. Motion for Terminating Sanctions i. Legal Standard Federal Rule of Civil Procedure 37(d) provides that the court may, on motion, order 4 sanctions if a party fails, after being served with proper notice, to appear for his/her deposition. 5 The allowable sanctions include, among others, “dismissing the action or proceeding in whole or 6 in part.” Fed. R. Civ. P. 37(b)(2)(A)(v), 37(d)(3). Pursuant to Federal Rule of Civil Procedure 7 41(b), a court may dismiss a complaint for failure to prosecute or to comply with a court order. 8 9 The test for Rule 37(b) and 41(b) dismissals is nearly identical. The Court must consider five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 10 manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy 11 favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” 12 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). This multi-factor test is “not 13 mechanical,” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th 14 Cir. 2007), and the court “need not make explicit findings regarding each of these factors,” Leon 15 v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). Rather, the test “provides the district court 16 with a way to think about what to do, not a set of conditions precedent for sanctions or a script 17 that the district court must follow.” Conn. Gen. Life Ins. Co., 482 F.3d at 1096. 18 19 ii. Analysis The first and second factors militate in favor of granting dismissal. This action has been 20 pending for almost three years. The Court has twice changed the date set for trial and has 21 modified the discovery schedule four times. The Court has warned that no further extensions will 22 be granted. Still, Plaintiffs have refused to participate in their depositions, or offer concrete dates 23 to do so. On the contrary, the Court has repeatedly extended the schedule to accommodate 24 Plaintiffs’ requests to no avail. Thus, the public’s interest and the court’s need to manage its 25 docket weigh in favor of the dispositive sanction. 26 The third factor requires a showing that Plaintiffs’ actions in this case have “impaired [the 27 defendants’] ability to proceed to trial or threatened to interfere with the rightful decision of the 28 case.” United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th 6 1 Cir.1988). This factor also weighs in favor of dismissal. Non-expert discovery has now ended. 2 Dispositive motions were due on October 27, 2017. The pretrial conference is set for February 1, 3 2018, and trial is set for March 27, 2018. BSI first noticed Plaintiff’s depositions for March 28, 4 2016. A year and a half later, BSI has been completely unable to depose both P. Orb Hatton and 5 Diane Hatton. BSI has been unable to prepare and file a dispositive motion and has been unable 6 to prepare for trial. Thus, Defendant’s ability to proceed to trial has been impaired. 7 “The fourth factor—that public policy favors decisions on the merits—usually weighs 8 against dismissal.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994), as amended (July 9 25, 1994). The weight it brings to Plaintiff’s side of the ledger is minimal, however. The fourth 10 factor “lends little support to a party whose responsibility it is to move a case toward disposition 11 on the merits but whose conduct impedes progress in that direction.” In re Phenylpropanolamine 12 (PPA) Prods. Liability Litig., 460 F.3d 1217, 1228 (9th Cir. 2006). Plaintiffs’ failure to appear for 13 deposition has precluded BSI from engaging in a vital portion of the discovery process, and has 14 impeded BSI’s ability to defend this action. Thus, the Court gives this factor little weight. Hyde 15 & Drath, 24 F.3d at 1167. 16 The fifth factor requires the Court to consider alternate, less severe, sanctions before 17 ordering dismissal. Factor 5 involves consideration of three subparts: “whether the court 18 explicitly discussed alternative sanctions, whether it tried them, and whether it warned the 19 recalcitrant party about the possibility of dismissal.” Valley Engineers Inc. v. Elec. Eng'g Co., 158 20 F.3d 1051, 1057 (9th Cir. 1998) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 132 (9th Cir. 21 1987)). However, “explicit discussion of alternatives is unnecessary if the district court actually 22 tries alternatives before employing the ultimate sanction of dismissal.” Malone, 833 F.2d at 132. 23 Furthermore, an express warning regarding the possibility of dismissal is not a prerequisite to a 24 Rule 41(b) dismissal when dismissal follows a noticed motion under Rule 41(b). Moneymaker v. 25 CoBen (In re Eisen), 31 F.3d 1447, 1455 (9th Cir.1994). 26 At the Informal Discovery Dispute Conference on September 6, 2017, the Court extended 27 the non-expert discovery cut-off deadline, and warned Plaintiffs that failure to appear for their 28 deposition could result in dismissal of this action. (ECF No. 104.) The Court allowed Plaintiffs’ 7 1 another opportunity to appear for a deposition and directed the parties to meet and confer 2 regarding an acceptable date. Defendant states that after a meet and confer on September 14, 3 2017, Plaintiffs agreed to appear for their depositions on September 21, 2017. (ECF No. 107, at 4 6.) The next day, Plaintiffs stated that the date conflicted with Mr. Hatton’s medical appointment, 5 but Plaintiffs agreed to appear for depositions on September 27 and 28, respectively. On 6 September 22, 2017, Defendant was informed that the depositions could not go forward because 7 Mr. Hatton had suffered a retinal detachment requiring immediate surgery. On September 25, 8 2017, Plaintiffs provided BSI with an emergency department summary indicating that Mr. Hatton 9 had been treated for blurred vision as a result of corneal scratches on September 18, 2017. 10 Plaintiffs state that on September 25, 2017, Mr. Hatton suffered a detached retina in his 11 left eye as a result of a fall. (ECF No. 110, at 2.) The condition was initially misdiagnosed as a 12 corneal scratch. He was scheduled for surgery on October 16, 2017. He was physically 13 incapacitated for five days, and requires an extended recovery period. He is experiencing 24 hour 14 debilitating headaches a result of stitches in his eye. Plaintiffs state that, barring any other medical 15 setbacks, they intend to prosecute this action to the best of their ability. 16 Given the repeated requests for postponement, as well as Diane Hatton’s failure to attend 17 her deposition without any justification, the Court has no reason to believe that less drastic 18 sanctions would cause Plaintiffs to diligently prosecute this action. Plaintiffs have been given 19 numerous extensions and warnings. Still, Plaintiffs have frustrated the discovery process for over 20 a year and a half by failing to appear for deposition, and have continuously failed to comply with 21 the Court’s scheduling orders. 22 Plaintiffs argue in their motion for continuance that BSI has failed to respond to their 23 March 2016 offer of settlement and has instead offered a settlement that exceeds value of the 24 property at issue in this case. But, Defendant is not obligated to accept Plaintiffs’ offer of 25 settlement. Plaintiffs also argue that Defendant has arbitrarily set deposition dates conflicting 26 with Plaintiffs’ medical appointments. But, Defendant may set the time and place of the 27 deposition. Fed. R. Civ. P. 30(b)(1). Moreover, the record shows that some of the many dates 28 where Plaintiffs failed to appear were selected by Plaintiffs themselves, and in any event 8 1 2 Plaintiffs are not proposing alternate firm dates now. BSI has shown a willingness to accommodate Mr. Hatton in light of his medical 3 condition. (ECF No. 96, 99.) Plaintiffs’ actions, however, have displayed an unwillingness to 4 diligently prosecute this action in compliance with the rules, procedures, and orders of this Court. 5 See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987) (“Pro se litigants must follow the same rules 6 of procedure that govern other litigants.”). Thus, the fifth factor also weighs in favor of issuing 7 the terminating sanction. 8 Four of the five factors strongly favor dismissal of this action. Accordingly, Plaintiffs' 9 action is dismissed with prejudice. See Hernandez v. City of El Monte,138 F.3d 393, 399 (9th 10 Cir.1998) (finding dismissal is proper “where at least four factors support dismissal or where at 11 least three factors ‘strongly’ support dismissal”). 12 III. CONCLUSION 13 Based on the foregoing, IT IS ORDERED that: 14 1. Plaintiff’s motion for continuance, (ECF No. 110), is DENIED; 15 2. Defendant’s motion for terminating sanctions, (ECF No. 107), is 16 GRANTED; and 3. Plaintiffs’ claims are DISMISSED with prejudice. The Clerk of the Court 17 18 is DIRECTED to close this case. 19 20 21 IT IS SO ORDERED. Dated: November 15, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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