Alexis v. Rogers
| Decision Date | 12 May 2017 |
| Docket Number | Case No.: 15cv691-CAB (BLM) |
| Parties | LAURA ALEXIS, Plaintiff, v. JAMES B. ROGERS, et al., Defendants. |
| Court | U.S. District Court — Southern District of California |
REPORT AND RECOMMENDATION FOR ORDER GRANTING DEFENDANTS' MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF
On April 19, 2017, Defendants filed a "Renewed Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Plaintiff." ECF No. 99 ("Mot."). In their motion, Defendants seek a variety of sanctions, including terminating sanctions, for a number of alleged discovery violations. Plaintiff did not oppose the motion. See Docket.
This Report and Recommendation is submitted to United States District Judge Cathy A. Bencivengo pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 72.1(c) of the United States District Court for the Southern District of California. For the reasons set forth below, this Court RECOMMENDS that Defendants' Motion for Terminating Sanctions Against Plaintiff be GRANTED.
On March 27, 2015, Plaintiff filed a complaint alleging, inter alia, intentional and negligent infliction of emotional distress, sexual harassment, and retaliatory, wrongful termination. ECF No. 1 at 30-32, 34-35. Plaintiff seeks general damages, lost earnings, punitive and exemplary damages, pre-judgment interest, costs of suit, attorneys' fees, and an injunction "restraining Defendants from continuing to engage in unlawful and unfair business practices." Id. at 35-36. Plaintiff alleges that she worked for Defendants from approximately January 2012 until she was unlawfully terminated in August 2013. Id. at 6-7, 15. Plaintiff claims that Defendant Rogers made "improper, explicit, and unwanted sexual advances for over the course of over a year," and that she was fired when she refused the advances. Id. at 2, 11-15. Plaintiff further alleges that after Defendants learned that she intended to file a sexual harassment suit against Mr. Rogers, they filed a retaliatory complaint against her in the Cook Islands on January 14, 2015, alleging extortion, and seeking $650,000 in damages. Id. at 16-17. Plaintiff also contends that on February 8, 2015, she was physically injured in connection with the service of process of the Cook Islands complaint when Terri Safino, "at the direction or request of the process server hired by Defendants," tried to physically drag Plaintiff from her house to the process server. Id. at 18.
On September 2, 2016, the Court issued a "Scheduling Order Regulating Discovery and Other Pre-Trial Proceedings." ECF No. 46. On September 21, 2016, Plaintiff moved to compel, inter alia, Defendant Rogers' deposition in Los Angeles, California. ECF No. 49. On October 21, 2016, the Court denied the motion and ordered the deposition to occur "in Singapore onNovember 9, 2016." ECF No. 57 at 4-5. Plaintiff noticed the deposition, but subsequently cancelled it a few days before the scheduled date while defense counsel was traveling to Singapore. ECF No. 61-1, Declaration of Olaf J. Muller at 3-4; Exh. 4. On November 11 and 12, 2016, Defendants filed three separate motions seeking various sanctions against Plaintiff and her counsel. ECF Nos. 59-61. On December 16, 2012, the Court issued an order (1) granting in part and denying in part Defendants' motion for monetary sanctions based on Plaintiff's and her counsel's willful violation of the October 21, 2016 Court order; (2) denying Defendants' motion for monetary sanctions based on Plaintiff's fraud on the court; and (3) granting in part and denying in part Defendants' motion for monetary and/or evidentiary sanctions based on Plaintiff's continuous withholding of critical documents. ECF No. 69. The Court ordered Plaintiff and her counsel to jointly and severally reimburse Defendants for defense counsel's flight and hotel expenses incurred in connection with Mr. Rogers' cancelled deposition in Singapore. Id. at 14-15, 20. Further, in light of Plaintiff's production of new emails and documents after her deposition,1 the Court allowed Defendants to redepose Plaintiff "for no more than three hours," but limited the scope of the questioning to the emails and documents produced after Plaintiff's deposition. Id. at 19-20. On January 4, 2017, Plaintiff's counsel filed a declaration stating that pursuant to the Court's December 16, 2016 Order [ECF No. 69], shesent a check in the amount of $7,598.82 to defense counsel as reimbursement for defense counsel's flight and hotel expenses. ECF No. 74, Declaration of Amber L. Eck at 2.
On December 19, 2016, Plaintiff's counsel moved to withdraw from the case. ECF No. 70; ECF No. 70-1, Declaration of Amber L. Eck at 2 (). On December 27, 2016, Defendants filed a notice of non-opposition to the motion to withdraw. ECF No. 73. On January 6, 2017, District Judge Cathy A. Bencivengo granted Plaintiff's counsel's motion to withdraw and substituted Plaintiff "to act as her own counsel." ECF No. 79 at 3. In the order, Judge Bencivengo emphasized that Plaintiff was "responsible for complying with all court rules and applicable laws, as well as all currently scheduled court deadlines and hearings," and cautioned that "[f]ailure to do so, and failure to comply with any order of this Court may result in sanctions or in the dismissal of this action." Id. Judge Bencivengo further required Plaintiff "to keep the Court appraised of her current mailing address and telephone number at all times," and cautioned that "[f]ailure to do so will result in the dismissal of this action." Id. at 3-4.
On January 9, 2017, Plaintiff sent an email to defense counsel, Mr. Muller, stating, inter alia, that she "refuse[d] to answer any questions UNTIL [she] find[s] a new attorney." Muller Decl., Exh. 8 at 41-42. Plaintiff also stated: "I did not sign a document, that I will self-represent myself." Id. at 42.
On January 20, 2017, Defendants filed an "Omnibus Discovery Motion and Motion for Terminating, Issue, Evidentiary, and/or Monetary Sanctions Against Plaintiff." ECF No. 82. Defendants moved for terminating and lesser sanctions based on: 1) Plaintiff's refusal to comply with the Court's December 16, 2016 Order compelling Plaintiff to appear for threeadditional hours of deposition; 2) Plaintiff's refusal to comply with the Court's August 26, 2016 Joint Protective Order forbidding public disclosure of materials designated as confidential; and 3) Plaintiff's refusal to comply with the Court's January 6, 2017 Order keeping the Court apprised of her current mailing address and telephone number. Id. Plaintiff did not file an opposition to the motion. See Docket.
On March 21, 2017, the Court issued an order granting in part and denying in part Defendants' omnibus discovery motion. ECF No. 95. Specifically, the Court ordered Plaintiff to do the following:
Id. at 3, 7, 12-13, 20. The Court refused to impose terminating sanctions, but "warned" Plaintiff that her "failure to comply with any of this Court's Orders or the Federal Rules of Civil Procedure may result in the imposition of sanctions including monetary sanctions, evidentiary sanctions and/or the dismissal or default of your case." Id. at 3-4, 21 (emphasis in original).
On March 27, 2017, Defendants timely noticed Plaintiff's continued deposition and IME by emailing and mailing appropriate notices to Plaintiff. ECF No. 99-1, Declaration of Olaf J. Muller ("Muller Decl.") at 2, Exh. 1. Defendants scheduled Plaintiff's IME by Dr. Glaser for April 7, 2017 at 9:00 a.m. and Plaintiff's continued deposition for April 10, 2017 at 1:00 p.m. in downtown San Diego. Id. Plaintiff did not object to either notice and did not appear for either the IME or the continued deposition. Muller Decl. at 2-4. Plaintiff did not respond to Mr. Muller's emails, including the emails Mr. Muller sent during Plaintiff's scheduled IME and deposition reminding Plaintiff that the IME/deposition were ongoing, that she was late, and that both Dr. Glaser and Mr. Muller would wait additional time at the noticed locations for Plaintiff to appear. Id. at 3, Exh. 2. Further, Plaintiff has not produced any documents or provided the supplemental discovery responses ordered by the Court in its March 21, 2017 order. Muller Decl. at 3. Plaintiff also "ignored" all of defense counsel's efforts to informally resolve the dispute, including "repeated efforts to schedule a joint call" with the Court "to discuss the situation and various discovery disputes in this case, as well as the case in general." Id. at 6-7.
In the instant motion, Defendants assert that Plaintiff has violated all of the orders issued by the Court on March 21, 2017, as well as the Court's December 16, 2016 Order compelling Plaintiff to appear for three hours of deposition, and seek various sanctions, including terminating sanctions.3 See Mot.; see also Muller Decl.
Rule 37 of the Federal Rules of Civil Procedure empowers this Court to issue sanctions...
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