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Rapp v. Hampton Inns Management LLC

United States District Court, D. Montana, Butte Division

January 8, 2019

JEFFREY S. RAPP, Plaintiff,
v.
HAMPTON MANAGEMENT LLC, Defendant.

          FINDINGS AND RECOMMENDATION

          Jeremiah C. Lynch United States Magistrate Judge

         Before 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.

         I. Background

         In 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 available witnesses.

         On 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.)

         On 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 Fed.R.Civ.P. 37(b)(2)(A)(v).

         II. Discussion

         Rule 37 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.

         Additionally, 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.

         Here, 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.

         The 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. 1985)).

         Here, 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.

         The 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)).

         A. Expediti ...


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