United States District Court, D. Montana, Butte Division
JEFFREY S. RAPP, Plaintiff,
HAMPTON MANAGEMENT LLC, Defendant.
FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge
the Court is Defendant Hampton Inns Management, LLC's
(“Hampton Inns”) motion to dismiss this case due
to Plaintiff Jeffrey Rapp's failure to comply with the
Court's Order entered November 2, 2018, requiring him to
produce discovery responses and appear for his deposition.
Rapp, appearing pro se in this action, has not filed a brief
in response to the motion as required by L.R.
7.1(d)(1)(B)(i). For the reasons discussed, the Court deems
it appropriate to recommend this action be dismissed.
January 2018, Rapp commenced this action against his former
employer, Hampton Inns, alleging claims for slander, libel,
and defamation. Rapp alleges that Hampton Inns falsely
accused him of misconduct and fraudulently provided false
information to the Montana Department of Labor. Rapp further
claims that Hampton Inns spread false rumors about him in the
community, and refused to seek the truth from several
October 12, 2018, Hampton Inns filed a motion pursuant to
Fed.R.Civ.P. 37(a)(3) requesting the Court compel Rapp to
provide responses to its discovery requests, and to appear
for his deposition. By Order entered November 2, 2018, the
Court granted the motion to compel, required Rapp to provide
his discovery responses by November 16, 2018, and ordered him
to appear for his deposition upon proper notice of the
deposition provided by Hampton Inns. The Court cautioned Rapp
that “if he fails to appear at his deposition this
action will be recommended for dismissal as a sanction under
Fed.R.Civ.P. 37.” (Doc. 50 at 5.)
December 11, 2018, Hampton Inns filed its motion to dismiss.
In support of its motion it states that Rapp did not provide
responses to its discovery requests as ordered by the Court,
and that Rapp refused to cooperate with it in scheduling his
deposition. Hampton Inns' motion provides details
explaining its efforts to coordinate with Rapp in setting a
date for his deposition, but that ultimately Rapp refused its
efforts to schedule his deposition. Therefore, Hampton Inns
moves for an order dismissing this action under authority of
permits the Court to dismiss an action where a party fails to
comply with an order issued pursuant to Rule 37 compelling
the party to produce discovery responses. Fed.R.Civ.P.
37(b)(2)(A)(v). Hampton Inn represents in its brief that Rapp
did not produce his discovery responses as required by the
Court's November 2, 2018 Order issued under Rule 37.
Therefore, Rapp's non-compliance in that regard provides
grounds for a sanction.
the Court has authority to dismiss an action where a party
fails to appear for his or her deposition. Fed.R.Civ.P.
37(d)(1)(A)(i) and (d)(3). But Rule 37(d)(1)(A)(i) requires,
as a condition precedent to the imposition of sanctions, that
sanctions can only be imposed for failure to appear at a
deposition “after being served with proper
notice” of the deposition.
significantly, Hampton Inn has not established that it
provided proper notice to Rapp of his deposition as required
by Fed.R.Civ.P. 30(b). Therefore, the Court will disregard
Rapp's mere failure to cooperate in setting a date for
his deposition as grounds for a sanction. Instead, the Court
relies upon Rapp's failure to provide his discovery
responses as expressly ordered by the Court.
Court has discretion in determining whether to grant a
dismissal as a sanction. In re Exxon Valdez, 102
F.3d 429, 432 (9th Cir. 1996). Where the sanction
of dismissal is imposed, the Court's discretion is
narrowed and the non-compliant party's conduct
“must be due to willfulness, fault, or bad
faith.” Henry v. Gill Industries, Inc., 983
F.2d 943, 946 (9th Cir. 1993). But
“‘disobedient conduct not shown to be outside of
the control of the litigant' is all that is required to
demonstrate willfulness, bad faith, or fault.”
Id. at 948 (quoting Fjelstad v. American Honda
Motor Co., 762 F.2d 1334, 1341 (9th Cir.
since Rapp is proceeding pro se his conduct in failing to
respond to discovery is directly attributable only to him,
and not to any other individual or representative. Rapp's
refusal to provide discovery responses is a result of his own
conduct within his own control. Because Rapp has not filed a
response to Hampton Inns' motion, Rapp has failed to
demonstrate that his conduct was outside of his own control.
Thus, the Court finds Rapp's non-compliance was willfull,
in bad faith, or due to his own fault.
Ninth Circuit has identified five factors to consider in
determining whether the circumstance of a particular case
warrant dismissal as a sanction. The factors are: “(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 defendants; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions.” In re
Exxon Valdez, 102 F.3d at 433. See also Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002)
(citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61
(9th Cir. 1992)). These five “factors are
‘not a series of conditions precedent before the judge
can do anything,' but are a ‘way for a district
judge to think about what to do.'” In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1226 (9th Cir. 2006) (quoting
Valley Engineers, Inc. v. Electric Engineering Co.,
158 F.3d 1051, 1057 (9th Cir. 1998)).