Free Order on Motion for Sanctions - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

LUIS OMAR ALVAREZ ACUNA, Plaintiff, vs.

KBI, Inc., et al., Defendants.

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CIV 04-550 PHX JWS ORDER AND OPINION [Re: Motion at docket 35]

I. MOTION PRESENTED At docket 35, KBI, Inc., files a notice of Luis Omar Alvarez Acuna's failure to comply with the court's orders; moves the court to dismiss Acuna's complaint with prejudice; requests that the court award it the attorney's fees it has incurred in defending against his action;1 and, in the alternative, requests that the court vacate its order setting July 29, 2005, as the deadline for filing final witness lists.2 At docket 36, Acuna files a response in which he neither opposes nor supports KBI's motion. Oral argument has not been requested and would not assist the court.

1

Doc. 35, p. 1. Id., p. 5.

2

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II. BACKGROUND The court has ordered Acuna to do two things. After KBI moved to compel discovery, the court ordered Acuna to respond to most of KBI's interrogatories and all its requests for production.3 The court also ordered Acuna to pay KBI $3,688 in attorney's fees it incurred in making its motion to compel.4 Acuna has not complied with either order. III. DISCUSSION Under Federal Rules of Civil Procedure 37(b)(2)(c) and 41(b), the court may dismiss an action if the plaintiff fails to comply with the court's orders, but only under certain circumstances. The "noncompliance must be due to [the plaintiff's] willfulness, fault, or bad faith"5 and five factors must be weighed. 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 [defendant]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions."6 The first and second factors favor dismissal when the plaintiff violates a court order,7 and when the violation is a "[f]ailure to produce documents as ordered," so does the third factor.8 The

3

Doc. 22, p. 3. Doc. 29.

4

Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (quoting Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997)).
6

5

Id. Id. Id. at 1116.

7

8

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fourth factor never favors dismissal. If the decision to dismiss comes down to the fifth factor, the court should not dismiss the case until it considers imposing lesser sanctions and warns the plaintiff about the possibility of dismissal.9 The decision to dismiss Acuna's action comes down to the fifth factor. Because the court has not yet considered lesser sanctions and warned Acuna about the possibility that his case could be dismissed for failure to comply with the court's orders, KBI's motion to dismiss will be denied. The court will not consider lesser sanctions now because KBI has not requested them. However, the court WARNS Acuna that, if he does not comply with the court's earlier orders, the court may be forced to conclude that lesser sanctions against him are ineffective and dismiss his case with prejudice. It appears that Acuna may no longer wish to prosecute his case. In his opposition to KBI's motion, he wonders, "if by welcoming a dismissal of [my] claims so [I] can look or search for [my] resources, that itself will be justice[?]"10 If he wants to withdraw his complaint, he should file a stipulation of dismissal signed by the parties to this case or a motion to dismiss.11 IV. CONCLUSION For the reasons set out above, the motion at docket 35 is GRANTED in part and DENIED in part. The court grants the motion to vacate the deadline for filing final witness lists. The new deadline is Friday, October 28, 2005. The court denies the

9

Id. Doc. 36, p. 2. FED. R. CIV. P. 41(a)(1)(ii).

10

11

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motions to dismiss Acuna's case and for the attorney's fees that KBI has incurred in defending against Acuna's action. However, the court will require Acuna to pay the reasonable expenses, including attorney's fees, that KBI has incurred as a result of Acuna's failure to comply with the court's earlier orders.12 Within ten (10) days of service of this order, KBI shall file and serve papers detailing those expenses. Thereafter, Acuna shall have ten (10) days to respond. He may object to the amount of expenses claimed, but may not contest KBI's entitlement to those expenses. No reply shall be filed unless requested by the court. DATED at Anchorage, Alaska, this 29th day of August 2005.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

12

FED. R. CIV. P. 37(b)(2).

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