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Stanke v. West

United States District Court, D. Oregon

May 30, 2018

TIMOTHY PAUL STANKE, Plaintiff,
v.
A. G. WEST, Defendant.

          FINDINGS AND RECOMMENDATION

          PAUL PAPAK UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         Now 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 prejudice.

         LEGAL STANDARD

         Federal 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." Fed.R.Civ.P. 37(d)(3).

         The 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.'" Id.,quoting Adriana,913F.2datl412. Imposition of the dismissal sanction is an ...


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