1 2

3

4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 TAEK YOON, Case No. CV 11-6792-VAP (KK) 11 Plaintiff, 12 v. FINAL REPORT AND RECOMMENDATION OF UNITED 13 LEE, ET AL., STATES MAGISTRATE JUDGE

14 Defendant(s).

15 16 17 This Final Report and Recommendation is submitted to the Honorable 18 Virginia A. Phillips, United States District Judge, pursuant to

and 19 General Order 05-07 of the United States District Court for the Central District of 20 California. 21 I. 22 SUMMARY OF RECOMMENDATION 23 On March 13, 2020, Defendants Gray and Saavedra (“Defendants”) filed a 24 Motion for Sanctions seeking dismissal for Plaintiff’s failure to comply with Court 25 orders to appear for his deposition (“Motion”). ECF Docket No. (“Dkt.”) 172. On 26 June 3, 2020, the Court issued an Order to Show Cause Why this Action Should Not 27 Be Dismissed for Failure to Prosecute and Comply with Court Orders (“OSC”). Dkt. 1 184. For the reasons discussed below, the Court recommends GRANTING 2 Defendants’ Motion and DISMISSING the action with prejudice. 3 II. 4 BACKGROUND 5 On March 17, 2013, Plaintiff Taek Yoon (“Plaintiff”) constructively filed1 a 6 Second Amended Complaint (“SAC”) pursuant to

. Dkt. 33. In the 7 sole remaining claim, Plaintiff alleges Defendants were deliberately indifferent to 8 Plaintiff’s safety from imminent attack by other inmates resulting in Plaintiff being 9 attacked on October 19, 2007.

10 On November 26, 2018, Defendants filed an Answer.2 Dkt. 142. 11 On November 27, 2018, the Court issued a Case Management and Scheduling 12 Order (“CMO”) setting a discovery cut-off of June 28, 2019 and a substantive motion 13 cut-off of July 29, 2019. Dkt. 143. 14 A. FIRST MOTION FOR SANCTIONS 15 On June 6, 2019, Defendants served a notice of deposition on Plaintiff for his 16 deposition to occur on June 21, 2019 at Defendants’ counsel’s office in Los Angeles, 17 California. Dkt. 153-1, Declaration of Kenneth G. Lake in support of first motion for 18 sanctions (“Lake 1st Decl.”), ¶ 2, Ex. A. 19 On June 21, 2019, Plaintiff failed to appear for his deposition.

. 20 21

22 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is 23 signed. Roberts v. Marshall,

, 770 n.1 (9th Cir. 2010); Douglas v. Noelle,

(9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits 24 filed by pro se prisoners”). At the time Plaintiff filed the SAC he was still in custody and, therefore, entitled to the mailbox rule. On April 8, 2013, however, Plaintiff filed 25 a notice that as of March 22, 2013 he no longer resided at a federal immigration detention center but at an address in South Korea. Dkt. 36. 26 2 On December 21, 2017, the Ninth Circuit affirmed the dismissal of the claims in Plaintiff’s Third Amended Complaint, but found the District Court had failed to 27 address the deliberate indifference to safety claim in the SAC, vacated the Judgment, 1 On July 3, 2019, Defendants filed a motion for sanctions requesting the 2 sanction of dismissal for Plaintiff’s failure to appear for deposition, or in the 3 alternative, an order compelling Plaintiff to appear for deposition and pay monetary 4 sanctions. Dkt. 153. 5 On July 24, 2019, the Court granted Defendants’ ex parte application to 6 continue the substantive motion cut-off to October 28, 2019. Dkt. 156. 7 On August 21, 2019, the Court issued an Order denying without prejudice 8 Defendants’ request for sanctions and granting Defendants’ request for an order 9 compelling Plaintiff to appear for deposition. Dkt. 159. The Court further ordered: 10 “Within five (5) days of the date of this Order, Defendants shall serve a notice of 11 deposition on Plaintiff for the deposition to occur within thirty (30) days of the date 12 of this Order. Plaintiff shall appear for his deposition on the date set forth on the 13 notice of deposition.” Id. at 5. 14 B. SECOND MOTION FOR SANCTIONS 15 On August 22, 2019, Defendants served a notice of deposition on Plaintiff for 16 his deposition to occur on September 11, 2019 at 11:00 a.m. at Defendants’ counsel’s 17 office in Los Angeles, California. Dkt. 160-1, Declaration of Kenneth G. Lake in 18 support of section motion for sanctions (“Lake 2nd Decl.”), ¶¶ 3-4, Ex. A. The notice 19 of deposition was received by Plaintiff on August 27, 2019. Id., ¶ 3. 20 On September 11, 2019, Plaintiff failed to appear for his deposition. Id., ¶ 5. 21 On September 11, 2019, Defendants’ counsel sent Plaintiff a letter requesting Plaintiff 22 contact Defendants’ counsel by telephone to meet and confer regarding his failure to 23 comply with the Court order to appear for his deposition. Id., ¶ 6. 24 On September 17, 2019, Plaintiff emailed Defendants’ counsel explaining that 25 until he received the correspondence from September 11, 2019, he had not 26 understood whether he was required to visit Defendants’ counsel’s office by “taking 27 air plane with a passport” or whether Defendants’ counsel would call him because he 1 Declaration of Kenneth G. Lake (“Lake 2nd Suppl. Decl.”), ¶ 2, Ex. D. On September 2 19, 2019, Defendants’ counsel responded via email to Plaintiff’s email and requested 3 Plaintiff call Defendants’ counsel on September 20, 2019 at 8:00 a.m. PST. Lake 2nd 4 Decl., ¶ 7. Defendants’ counsel did not receive a phone call from Plaintiff on 5 September 20, 2019. Id. 6 On September 22, 2019, Plaintiff emailed Defendants’ counsel requesting 7 another date and time for Plaintiff to call Defendants’ counsel. Id., ¶ 8. On October 8 18, 2019, Defendants’ counsel responded to Plaintiff’s email and requested Plaintiff 9 call Defendants’ counsel on October 21, 2019 at 9:00 a.m. PST. Id., ¶ 9; Lake 2nd 10 Suppl. Decl., Ex. D. Defendants’ counsel did not receive a phone call from Plaintiff 11 on October 21, 2019. Id. 12 On October 29, 2019, Defendants filed a second motion requesting the 13 sanction of dismissal for Plaintiff’s failure to comply with a Court order to appear for 14 deposition, or in the alternative, an order compelling Plaintiff to appear for deposition 15 and pay monetary sanctions. Dkt. 160. In Plaintiff’s Opposition to the second 16 motion for sanctions, he stated it was still not clear to him whether he is supposed to 17 contact Defendants’ counsel by phone or “actually visit” the United States (and 18 whether he has the U.S. Attorney General’s permission to do so). Dkt. 165. 19 On October 31, 2019, the Court granted Defendants’ ex parte application to 20 continue the substantive motion cut-off to January 10, 2020. Dkt. 164. 21 On January 10, 2020, the Court granted Defendants’ ex parte application to 22 continue the substantive motion cut-off to March 13, 2020. Dkt. 168. 23 On January 14, 2020, the Court issued an Order granting in part and denying in 24 part Defendants’ second motion for sanctions. Dkt. 169. The Court declined to issue 25 terminating sanctions, but granted Defendants’ request to compel Plaintiff’s 26 deposition and awarded Defendants their reasonable expenses caused by Plaintiff’s 27 failure to appear for his September 11, 2019 deposition. Id. 1 C. THIRD MOTION FOR SANCTIONS 2 On January 16, 2020, Defendants’ counsel emailed Plaintiff a copy of the 3 January 14, 2020 Order and a notice of deposition for Plaintiff to appear at 4 Defendants’ counsel’s office in Los Angeles, California on February 3, 2020, which 5 was served the same day. Dkt. 172-1, Declaration of Kenneth G. Lake in support of 6 third motion for sanctions (“Lake 3rd Decl.”), ¶ 2, Exs. A, B. Plaintiff did not respond 7 to Defendants’ counsel’s email. Id., ¶ 2. 8 On February 3, 2020, Plaintiff failed to appear for his deposition.3 Id., ¶ 3, Ex.

On February 7, 2020, Defendants’ counsel sent Plaintiff an email advising him 11 that he had failed to comply with the Court’s January 14, 2020 Order and requesting 12 Plaintiff call him to meet and confer.

, Ex. D. 13 On February 11, 2020, Plaintiff sent Defendants’ counsel an email stating he 14 had called Defendants’ counsel and left a message at the time of the deposition on 15 February 3, 2020.

. 16 On March 13, 2020, the Court granted Defendants’ ex parte application to 17 continue the substantive motion cut-off to May 15, 2020. Dkt. 174. 18 On March 13, 2020, Defendants filed the instant third Motion seeking 19 terminating sanctions, and alternatively evidentiary and monetary sanctions. Dkt. 172. 20 On May 8, 2020, Plaintiff filed an Opposition noting “the post office did not 21 accept this mail from April 1, 2020 . . . saying no airplane to the U.S.A. [due to] 22 coronavirus.” Dkt. 181. 23 On May 12, 2020, the Court granted Defendants’ ex parte application to 24 continue the substantive motion cut-off to July 17, 2020. Dkt. 180. 25 26 3 Plaintiff alleges he called Defendants’ counsel several times on February 3, 2020, but 27 “no counsel or any person had received [Plaintiff’s] call.” Dkt. 181. The Court, 1 On May 21, 2020, Defendants filed a Reply.4 Dkt. 183. 2 D. ORDER TO SHOW CAUSE 3 On June 3, 2020, the Court issued an OSC finding the action appeared subject 4 to dismissal for Plaintiff’s failure to prosecute and comply with court orders. Dkt. 5 184. Nevertheless, the Court noted, “in light of the current global pandemic 6 involving the Coronavirus Disease 2019 (‘COVID-19’), it appears somewhat 7 unreasonable for Defendants to continue to insist on Plaintiff traveling to Los 8 Angeles to appear for a deposition, particularly in light of other possible alternatives 9 to an ‘in-person’ deposition such as a remote deposition by videoconference.”

at 10 6. The Court, therefore, ordered Plaintiff to respond to the OSC no later than June 11 23, 2020 by filing a response (1) explaining why this action should not be dismissed 12 for failure to prosecute and comply with Court orders, and (2) providing five dates 13 between July 1, 2020 and July 14, 2020 when he is available to participate in a remote 14 deposition by videoconference, or setting forth a concrete, alternate plan to provide 15 Defendants with the discovery to which they are entitled, taking into consideration 16 the Court’s need to manage its docket and move this case, which has been pending 17 for almost a decade, towards resolution.

In addition, Plaintiff was specifically 18 ordered to “email defense counsel a copy of his written response with the five dates 19 for a video conference and/or an alternate plan” at Defendants’ counsel’s email 20 address of record “no later than June 23, 2020”.

(emphasis in original). 21 Plaintiff did not request an extension of time to respond to the OSC, and the 22 Court did not receive a response to the OSC by the deadline set. 23 On July 14, 2020, the Court issued the original Report and Recommendation 24 recommending Defendants’ Motion should be granted and the action dismissed with 25 prejudice for failure to prosecute and/or obey Court orders pursuant to Federal Rule 26

27 4 Defendants also allege Plaintiff has failed to pay the monetary sanctions awarded on 1 of Civil Procedure 41(b). Dkt. 186. The parties were concurrently notified that any 2 objections to the original Report and Recommendation were due by August 14, 2020. 3 Dkt. 185. 4 On July 20, 2020, the Court received Plaintiff’s Response to the OSC, which 5 was mailed from South Korea on June 21, 2020. Dkt. 187. Plaintiff alleges he has no 6 intention to disobey court orders, argues the case should not be dismissed “because of 7 the public interest” and “because he desires to get a pardon in his case BA141348 and 8 KA044269”, and provides five dates between July 2 and July 13, 2020 when he would 9 be available for “video proceeding” (but states he “desires to go to [defense] counsel’s 10 office by an air plane”).

11 The matter thus stands submitted. 12 III. 13 DISCUSSION 14 A. APPLICABLE LAW 15 Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure authorizes the 16 sanction of dismissal against parties who disobey a court’s discovery orders. See Nat’l 17 Hockey League v. Metro. Hockey Club, Inc.,

,

,

2d 747 (1976); Sigliano v. Mendoza,

(9th Cir. 1981). To justify the 19 imposition of case-dispositive sanctions, the Court must find that the discovery 20 violations were due to “willfulness, bad faith, or fault of the party.” Commodity 21 Futures Trading Comm’n v. Noble Metals Int’l, Inc.,

, 770-71 (9th Cir. 22 1995), cert. denied,

,

,

(1996); see also 23 Societe Internationale v. Rogers,

,

,

(1958). Disobedient conduct not outside the control of the litigant is all that is 25 required to demonstrate willfulness, bad faith, or fault. Henry v. Gill Indus, Inc., 983

(9th Cir. 1993); see also Fair Hous. of Marin v. Combs,

899, 905 (9th Cir. 2002). In evaluating the propriety of sanctions, the Court considers 1 1406, 1411 (9th Cir. 1990), cert. denied,

,

,

1100 (1991). 3 In addition, “[t]his Court has the inherent power to dismiss a case, with 4 prejudice, for lack of prosecution.” Attebery v. Uhl, No. 2:10-CV-01341-MCE, 2012

, at *1 (E.D. Cal. Aug. 1, 2012) (citing Link v. Wabash Railroad Co., 370

, 629-30,

,

(1962)); see Fed. R. Civ. P. 41(b); 7 Omstead v. Dell, Inc.,

(9th Cir. 2010) (noting district courts have 8 sua sponte authority to dismiss actions for failure to prosecute or to comply with 9 court orders, stating standard applied in dismissal for failure to prosecute); Ferdik v. 10 Bonzelet,

(9th Cir. 1992) (ordering dismissal for failure to 11 comply with court orders). 12 In deciding whether to dismiss for failure to prosecute or comply with court 13 orders, a district court must consider five factors: “(1) the public’s interest in 14 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 15 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 16 on their merits; and (5) the availability of less drastic sanctions.” Omstead,

at 1084 (quoting Henderson v. Duncan,

(9th Cir. 1986)); see also 18 Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills,

(9th 19 Cir. 2007) (applying factors where party failed to comply with discovery orders). “The 20 first two of these factors favor the imposition of sanctions in most cases, while the 21 fourth cuts against a default or dismissal sanction. Thus, the key factors are prejudice 22 and availability of lesser sanctions.” Wanderer v. Johnston,

(9th 23 Cir. 1990). 24 B. ANALYSIS 25 Here, the factors weigh strongly in favor of granting Defendants’ Motion. 26 The first two factors -- public interest in expeditious resolution of litigation and 27 the court’s need to manage its docket -- weigh in favor of dismissing the SAC. 1 unwillingness to contact Defendants’ counsel to meaningfully meet and confer 2 regarding Plaintiff’s repeated failure to appear for deposition. In addition, Plaintiff 3 has failed to comply with two Court orders directing Plaintiff to appear for deposition. 4 Despite Plaintiff’s noncompliance, the Court provided Plaintiff a final opportunity to 5 propose dates for a remote deposition (or an alternate plan to provide Defendants 6 with the discovery to which they are entitled). Plaintiff, however, failed to timely 7 advise Defendants’ counsel of his availability for a remote deposition5 and his 8 proposed “alternate plan” is to appear in person. See dkt. 187. Finally, over one year 9 has passed since the Court first ordered Plaintiff to appear for his deposition. This 10 repeated failure to participate and failure to abide by Court orders prevents the 11 expeditious resolution of litigation and impedes the Court’s need to manage its 12 docket. 13 The third factor -- prejudice to Defendants -- also weighs in favor of dismissing 14 the SAC. The discovery cut-off was June 28, 2019 and the Court has continued the 15 substantive motion cut-off five times. Dkts. 143, 156, 164, 168, 174, 180. 16 Defendants first noticed Plaintiff’s deposition for June 21, 2019 – over one year ago. 17 Lake 1st Decl., ¶ 2, Ex. A. Plaintiff’s failure to appear for his deposition, or properly 18 meet and confer regarding his deposition, has deprived Defendants “of any 19 meaningful opportunity to follow up on [] time-sensitive information or to 20 incorporate it into litigation strategy.” Fair Hous. of Marin, 285 F.3d at 906. Under 21 these circumstances, Plaintiff’s refusal to comply with his discovery obligations 22 prejudices Defendants’ ability to defend themselves and adequately prepare for trial. 23 See Adriana Int’l Corp., 913 F.2d at 1412 (“[R]epeated failure of [plaintiffs] to appear 24 at scheduled depositions compounded by their continuing refusal to comply with 25

26 5 Plaintiff alleges he “also will send th[ese] facts [regarding his availability] to the [defense] counsel through the email of counsel.” Dkt. 187 at 3. The Court, however, 27 notes Plaintiff’s statement is not signed and certified as true under penalty of perjury 1 court-ordered production of documents constitutes an interference with the rightful 2 decision of the case.”); Reddy v. Gilbert Med. Transcription Serv., Inc., No. CV 10- 3 0524-JFW (DTB),

, at *6 (C.D. Cal. Feb. 4, 2011), aff’d,

App’x 622 (9th Cir. 2012) (dismissing case, finding “plaintiff’s ‘repeated failure to 5 provide [discovery] in a timely fashion [has] prejudiced the ability of [the defendants] 6 to prepare their case for trial’”). 7 The fourth factor -- resolution of cases on their merits -- always weighs against 8 dismissal. See Dreith v. Nu Image, Inc.,

(9th Cir. 2011). Under the 9 circumstances of this case, however, the policy favoring resolution on the merits does 10 not outweigh Plaintiff’s repeated failure to comply with his discovery obligations and 11 court orders.

12 The fifth factor -- availability of less drastic sanctions -- also weighs in favor of 13 dismissing the SAC. The record demonstrates Plaintiff has been given numerous 14 opportunities to comply with his discovery obligations. In addition, Plaintiff 15 continues to disregard his discovery obligations and Court orders despite lesser 16 monetary sanctions having previously been imposed by this Court on January 14, 17 2020. See dkt. 169. While dismissal should not be entered unless Plaintiff has been 18 notified dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897

, 1523 (9th Cir. 1990), Plaintiff received further notification with the original 20 Report and Recommendation and the accompanying notice of the right to file 21 objections. Dkts. 185, 186. 22 Finally, Plaintiff fails to demonstrate his refusal to comply with his discovery 23 obligations or Court orders is outside his control. Rather, Plaintiff’s repeated failure 24 to communicate with Defendants’ counsel, file a motion for protective order before 25 failing to appear at his Court ordered depositions, or comply with Court orders 26 demonstrates a willful disregard for discovery rules and court orders. See Sanchez v. 27 Rodriguez,

(C.D. Cal. 2014) (“A party’s lack of counsel may be 1 court orders and in weighing the other factors regarding dismissal, but pro se status 2 does not excuse intentional noncompliance with discovery rules and court orders.”). 3 Accordingly, after weighing the relevant factors, the Court finds Plaintiff’s 4 repeated refusal to appear for his deposition, properly meet and confer, and comply 5 with Court orders demonstrates willful misconduct sufficient to justify the imposition 6 of case-dispositive sanctions. See Fair Hous. of Marin, 285 F.3d at 905; see also 7 Saravia v. Dynamex, Inc., No. C 14-05003-WHA,

, at *4 (N.D. Cal. 8 Sept. 30, 2016) (dismissing plaintiffs from action with prejudice, where plaintiffs failed 9 to offer any excuse for repeatedly failing to appear at their depositions); Attebery, 10

, at *1 (dismissing action with prejudice for failure to respond to 11 discovery, appear at deposition, or pay previously ordered monetary sanctions). 12 Hence, the Court finds the case should be dismissed with prejudice for failure to 13 prosecute and/or obey Court orders pursuant to Federal Rule of Civil Procedure 14 41(b). 15 IV. 16 RECOMMENDATION 17 IT IS THEREFORE RECOMMENDED that the District Court issue an 18 order: (1) accepting the findings and recommendations in this Final Report and 19 Recommendation; (2) GRANTING Defendants’ Motion; and (3) DISMISSING the 20 action with prejudice. 21

22 Dated: September 17, 2020

23 HONORABLE KENLY KIYA KATO United States Magistrate Judge 24 25 26 27