United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION
PAPAK UNITED STATES MAGISTRATE JUDGE
Timothy Paul Stanke filed this action pro se and
in forma pauperis against defendant A. G. West on
June 15, 2017. Stanke alleges that West, a security officer
of the federal courthouse in Eugene, Oregon, threatened
Stanke with bodily harm. Arising out of the foregoing, Stanke
seeks award of $150, 000 in compensation from West in
connection with one or more unspecified causes of action. As
Stanke appears to be a citizen of Wisconsin and West a
citizen of Oregon, it appears that this court has diversity
jurisdiction over Stanke's action pursuant to 28 U.S.C.
§ 1332(a), or in the alternative may have
federal-question jurisdiction pursuant to 28 U.S.C. §
1331, depending on the nature of the claim or claims Stanke
intends to allege against West.
before the court is West's Fed.R.Civ.P. 37(d) motion
(#26) to dismiss Stanke's action as a sanction for
failing to comply with his discovery obligations and failing
to comply with a court order. I have considered the motion
and all of the pleadings and papers on file. For the reasons
set forth below, West's motion should be granted, and
Stanke's claim or claims should be dismissed without
Civil Procedure Rule 37(d) authorizes the federal courts,
upon the motion of a party, to impose sanctions in connection
with an opposing party's failure to produce documents
after being properly served with a request for inspection of
documents pursuant to Federal Civil Procedure Rule 34.
See Fed. R. Civ. P. 37(d)(1)(A). Sanctions
authorized under Rule 37(d) may include the following:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the
action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing
designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in
whole or in part; [or]
(vi) rendering a default judgment against the disobedient
party. . . . Fed.R.Civ.P. 37(b)(2)(A) (emphasis supplied);
see also Fed. R. Civ. P. 37(d)(3). "Instead of
or in addition to these sanctions, the court must require the
party failing to act... to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless
the failure was substantially justified or other
circumstances make an award of expenses unjust."
courts of the Ninth Circuit consider five factors when
determining the propriety of dismissal as a sanction for
failure to comply with discovery orders:
(1) the public's interest in expeditious resolution of
litigation; (2) the court's need to manage its dockets;
(3) the risk of prejudice to the party seeking sanctions; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic sanctions.
Valley Eng'rs v. Elec. Eng'g Co., 158 F.3d
1051, 1057 (9th Cir. 1998) (internal modifications omitted).
The Ninth Circuit has found that in the event a party
violates a court order, "factors 1 and 2 support
sanctions and 4 cuts against case-dispositive sanctions, so 3
and 5, prejudice and availability of less drastic sanctions,
are decisive." Id., citing Adriana International
Corp. v. Thoeren,913 F.2d 1406, 1412 (9th Cir. 1990).
Moreover, the fifth factor generally "involves
consideration of three subparts: whether the court explicitly
discussed alternative sanctions, whether it tried them, and
whether it warned the recalcitrant party about the
possibility of dismissal." Id., citing Adriana,
913 F.2d at 1413. Notwithstanding the foregoing, "it is
not always necessary for the court to impose less serious
sanctions first, or to give any explicit warning."
Id., citing Adriana, 913 F.2d at 1413. The critical
issue arising in connection with the third and fifth factors
in determining the propriety of case-dispositive sanctions is
"whether the discovery violations 'threaten to
interfere with the rightful decision of the case.'"
Imposition of the dismissal sanction is an ...