Free Motion to Dismiss Case - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Troy P. Foster State Bar No. 017229 Justin S. Pierce State Bar No. 022646 Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) )

8 Luis Omar Alvarez Acuna, 9 10 vs. Plaintiff,

No. CIV 04-0550 PHX JWS KBI'S MOTION TO DISMISS WITH PREJUDICE

11 KBI, Inc., et al, 12 13 14 Defendants.

Despite over nine months of KBI's good faith efforts, and two Court Orders

15 requiring plaintiff to provide discovery responses, plaintiff has repeatedly refused to 16 respond. And, in the face of the Court's most recent explicit warning that his case could 17 be dismissed with prejudice if he did not comply with the previous orders, plaintiff 18 continues his contemptuous refusal ­ instead calling the Court and undersigned 19 conspirators and racists. 20 Plaintiff has been given repeated opportunities to comply with KBI's requests and

21 this Court's Orders, but has squandered each at every turn. KBI moves to dismiss 22 plaintiff's case with prejudice. See Fed. R. Civ. P. 37(b)(2)(c) and 41(b). KBI further 23 requests that the Court grant its reasonable attorneys' fees in defending this action. 24 25 I. Background1

Plaintiff filed this lawsuit over 16 months ago alleging wrongful termination and

26 violation of the Fair Labor Standards Act and Arizona wage statutes. As part of the 27
1 KBI's previous Motion 28 Court's ease of reference,(docket 35) outlines these background facts. However, for the KBI repeats that information in this Motion.

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initial stages of discovery, KBI submitted its First Set of Non-Uniform Interrogatories and First Request for Production of Documents on October 18, 2004.2 Plaintiff failed to properly respond, and instead made general objections to KBI's requests that provided no authority for his objections. As a result of plaintiff's failure to provide any meaningful information or documents, KBI sent a letter to plaintiff dated December 1, 2004, which informed plaintiff of the inadequacies of his responses and provided plaintiff with the relevant authority for KBI's requests as well as some additional time to respond. Again, plaintiff failed to respond. Consequently, KBI sent another letter dated December 9, 2004 in order to schedule a conference to resolve the discovery issues without involving the Court. Plaintiff refused to meet with KBI and re-submitted his original objections to KBI's discovery requests. KBI made another effort to resolve the discovery issues without involving the Court by sending another detailed letter dated December 15, 2004, which outlined the relevancy standards for KBI's requests. Moreover, in this letter, KBI informed plaintiff that court action would be necessary if he did not respond to the requests. Plaintiff responded with a letter dated December 20, 2004 that "encouraged" KBI to take this issue before the Court. Seeing no other option, KBI filed a Motion to Compel Discovery. On March 3, 2005, the Court granted KBI's Motion and ordered plaintiff to answer interrogatories and produce documents to KBI. Furthermore, the Court held that plaintiff's refusal to answer the interrogatories and produce documents was not substantially justified and ordered him to pay KBI's reasonable attorneys' fees. Unsatisfied with the Court's Order, plaintiff filed a "Motion/Request for Leave to Appeal" on March 15, 2005, which this Court denied as "frivolous." Plaintiff then appealed this Court's decision to the Ninth Circuit
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Copies of this and other pertinent documents are attached to KBI's January 3, 2005 Motion to Compel, which is incorporated herein by reference.
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Court of Appeals on April 11, 2005.3 The court dismissed the appeal for lack of jurisdiction.4 On May 26, 2005, this Court ordered plaintiff to pay KBI's attorneys' fees by July 10, 2005. On June 2, 2005, KBI once again informed plaintiff that it would be forced to seek the Court's assistance if he refused to comply with the Order compelling him to answer KBI's discovery requests and pay the attorneys' fees.5 As a last-ditch effort, on June 24, 2005, KBI requested that plaintiff comply with the Court's Order and provide responses to discovery by July 8, 2005.6 Also, in that letter, KBI again asked plaintiff for dates for his deposition. Plaintiff again failed to respond to the discovery requests and the Court's Orders. On July 25, 2005, KBI filed a Notice of Non-Compliance with Court's Order and Motion for Sanctions. At that time, the Court declined to dismiss plaintiff's case because plaintiff had not been warned about that possibility. However, the Court again sanctioned plaintiff with an award of fees and costs, ordered plaintiff to comply with its previous orders, and explicitly warned plaintiff that failure to comply could result in dismissal with prejudice. On August 31, 2005, the undersigned sent plaintiff a letter. See KBI's correspondence, attached as Exhibit A. In that letter, KBI again expressly asked plaintiff to provide it with the substantive discovery responses and a date for his deposition by September 15, 2005. On September 7, 2005, plaintiff wrote a letter to the undersigned. See Plaintiff's correspondence, attached as Exhibit B. Unfortunately, however, plaintiff failed to enclose any answers to the interrogatories, any documents responsive to the discovery requests, or any dates that he will be available for his deposition. Instead, in brazenly admitting his repeated failures to comply with this Court's Orders, plaintiff justifies his
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See Docket 35 at Exhibit A. See Docket 35 at Exhibit B. See Docket 35 at Exhibit C. See Docket 35 at Exhibit D.
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continued refusal to provide discovery responses: "You know very well that I have not given you any discovery request [sic] because in one instance, due to your illegally lengthy, extensive, and only to cause a burden request [sic]." Plaintiff goes on to accuse the Court, the undersigned, and defendant of engaging in a conspiracy, seeking the discovery because he is Hispanic, and engaging in unlawful activity, among other things. Finally, on September 14, 2005, the undersigned talked to plaintiff in order to obtain discovery responses. In that conversation, plaintiff said he was not providing the responses, as ordered. And he did not. In the end, plaintiff has provided KBI with nothing, and continues to violate the Court's Orders. KBI requests that the Court dismiss plaintiff's case with prejudice. II. Plaintiff's Actions Warrant Dismissal Of His Lawsuit

The Federal Rules allow a district court to dismiss an action if a party fails to comply with an order to compel discovery. Fed R. Civ. P. 37(b)(2)(C). Similarly, Rule 41 allows a district court to dismiss "[f]or failure of the plaintiff ... to comply with ... any order of [the] court ...." Fed. R. Civ. P. 41(b). The standards governing dismissal are the same under both rules. Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987). Dismissal is proper where the failure to comply with a court order is due to willfulness, bad faith, or fault of the party. Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958); Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004). The Ninth Circuit has stated that "`disobedient conduct not shown to be outside the control of the litigant' is all that is required to demonstrate willfulness, bad faith, or fault." Henry v. Gill Industries, Inc., 983 F.2d 943, 948 (9th Cir. 1993) (quoting Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1341 (9th Cir. 1985)). In addition, district courts must weigh five factors when deciding whether to dismiss a case for noncompliance with a discovery order: "(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)
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the availability of less drastic sanctions." Brotby, 364 F.3d at 1115 (quoting Malone, 833 F.2d at 130). "Where a court order is violated, the first two factors support sanctions and the fourth factor cuts against a [dismissal]. Therefore, it is the third and fifth factors that are decisive." Id. As the Court noted in its August 30, 2005 Order, the first three factors favor dismissal. See Order at pp. 2-3. Finally, KBI can think of no less drastic sanction that will persuade plaintiff to comply with this Court's Orders and answer lawful discovery requests; he has already demonstrated that previous sanctions and orders had no effect on his behavior. In fact, his response to that sanction was simply to ignore it like he has other Court Orders. Even in the face of, and immediately on the heels of, this Court's direct and clear warning that his failure to comply could result in a dismissal, plaintiff continues to actively snub this Court's Orders. III. Conclusion

The factors this Court must weigh in deciding whether to dismiss this action overwhelmingly support dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (upholding dismissal when only first three factors weighed in favor of dismissal); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (upholding dismissal when the plaintiff's behavior "manifested the requisite fault," and therefore, "fully justified the sanction imposed"). As a result, KBI requests that the Court dismiss this case with prejudice and award KBI its reasonable attorneys' fees in defending this action. RESPECTFULLY SUBMITTED this 16th day of September, 2005. LEWIS AND ROCA LLP

By s/ Troy P. Foster Troy P. Foster Justin S. Pierce Attorneys for Defendants

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COPY of the foregoing mailed this 16th day of September, 2005, to: Luis Omar Alvarez Acuna 2934 West Rose Lane Phoenix, AZ 85017 Plaintiff Pro Per s/ Judi Ronnow

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