Opinion
6:20-cv-01515-MK
10-06-2022
JEREMY KELLEY, Plaintiff, v. T-MOBILE USA, INC., a Delaware corporation, Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (He / Him) United States Magistrate Judge
Pro se Plaintiff Jeremy Kelley filed this disability discrimination, retaliation, and wrongful discharge lawsuit against Defendant T-Mobile USA, Inc. First Am. Compl., ECF No. 11 (“FAC”). Currently before the Court is Defendant's motion to dismiss. Def.'s Resp. Order Show Cause, ECF No. 33 (“Def.'s Mot. Dismiss”); see also May 2, 2022 Minute Order (construing Defendant's response to show cause order as a motion to dismiss and allowing Plaintiff additional time to file a response). Although Plaintiff initially opposed dismissal, he now concurs that dismissal is appropriate; however, he urges the Court to do so “without prejudice and without costs to either party.” Pl.'s Mot. Dismiss 1, ECF No. 40. Defendants filed a response to Plaintiff's submission requesting that the Court dismiss this lawsuit with prejudice. See Resp. Mot. Dismiss, ECF No. 41. For the reasons that follow, Defendant's motion to dismiss should be GRANTED and this case should be DISMISSED with prejudice.
BACKGROUND
Plaintiff filed this action in June 2020 in Marion County Circuit Court, and Defendant removed to this Court in September 2020. Notice Removal, Ex. 1, ECF No. 1-1. Plaintiff subsequently amended his complaint in October 2020. See FAC, ECF No. 11. After Plaintiff's attorney withdrew in March 2021, the Court granted Plaintiff e-filing privileges and access to the Court's CM/ECF system to proceed as a self-represented party. ECF No. 20.
Throughout the course of these proceedings, the Court has taken considerable time to facilitate Plaintiff's ability to pursue his claims, including waiving conferral requirements pursuant to Local Rule 7-1(a) and submission of a joint Alternative Dispute Resolution report. Discovery Hearing Minutes, ECF No. 31. The Court put Plaintiff on notice that the Local Rules and the Federal Rules of Civil Procedure apply equally to Pro se litigants, see LR 1-5(c), and explained the expectations of professional conduct that the Court expects from all litigants who appear before it. See ECF No. 37. When Plaintiff's conduct caused delays and fell short of expectations of professional conduct, the Court gave admonishments and specific instructions requiring parties to follow the Court's orders. ECF Nos. 10, 16, 26, 31; Totten Decl. Ex. 3 at 6, ECF No. 34-3; id., Ex. 9 at 1-2, ECF No. 34-9; id., Ex. 10 at 5-6, ECF No. 34-10.
On October 6, 2020, the Court ordered the parties to complete discovery by February 26, 2021. ECF No. 10. The deadline was extended several times with a final discovery cutoff date of September 30, 2021. ECF Nos. 16, 22, 26, 31.
On November 1, 2021, the Court resolved a discovery dispute between parties and ordered the parties to appear for depositions at the following dates: Plaintiff on February 23, 2022, his treating physician and his spouse on March 30, 2022, and eight of Defendant's employees on February 24 and 25, 2022. Discovery Hearing Minutes, ECF No. 31. To accommodate Plaintiff, the Court arranged for the depositions to take place in the Jury Assembly Room of the Wayne L. Morse Courthouse, which would require Defendant's employees and their counsel to travel from out of town and state, including one employee who flew from Texas to Oregon to sit for a deposition. Id.; see also Def.'s Mot. Dismiss 8, ECF No. 33.
On February 4, 2022, the parties requested to reserve the Jury Assembly Room for depositions on February 23-25, scheduled to begin at 8:30 a.m. on February 23. Totten Decl. Ex. 3 at 3, ECF No. 34-3.
On February 23 at 8:47 a.m., Plaintiff informed counsel for Defendant that he was “dealing with a Covid 19 situation [and] it would be against CDC for me to be in close contact with out masks on at this time. We will need to reschedule.” Id., Ex. 5 at 2, ECF Nos. 34-5.
At 9:02 a.m., Plaintiff notified the Court by email that he would not be attending the scheduled depositions:
I am currently dealing with symptoms of Covid 19 and am unable to participate in the court ordered depositions, due to this. I would ask that the court request defendant and myself to work to find new dates and reschedule. Thank you for understanding.Id., Ex. 6 at 1, ECF Nos. 34-6.
At 9:56 a.m., the Court denied Plaintiff's request to re-schedule new deposition dates without diagnostic documentation of a positive COVID-19 test:
I have just received Mr. Kelley's email cancelling his participation in the depositions scheduled for today and the following two days due to “symptoms of [COVID-19].”
I am also in receipt of Ms. Totten's email advising the Court she is in the Eugene U.S. Courthouse this morning expecting that depositions would begin today, and has also just recently received Mr. Kelley's email.
I hope Mr. Kelly will recover from these generally described symptoms. I am not inclined to automatically order rescheduling of
the depositions until I have some diagnostic documentation of a positive [COVID-19] test. If Mr. Kelley would ask this Court to consider ordering a new schedule for depositions, the Court instructs Mr. Kelley to obtain a Covid 19 test and email a photo of the test results to the court and Ms. Totten. Alternatively, if the symptoms themselves are so severe as to prevent someone from participating in these depositions, but is not Covid 19 related, then the Court will require medical documentation that Mr. Kelley's symptoms would prevent him from participating in these depositions.
The Court find[s] its disappointing that Mr. Kelley did not provide earlier notice of these issues before this morning on the day depositions were to begin. Such late notice has jeopardized the ability of both parties to complete discovery, has protracted this litigation, and may result in sanctions. The Court will consider a request to reschedule depositions and any objections to such a request once the [COVID-19] test results are forwarded to the Court. The test results must be forwarded to the Court within 24 hours.Id., Ex. 9 at 1, ECF No. 34-9.
At 10:22 a.m., Plaintiff informed the Court, ex parte, that he contracted COVID-19 in India on or about February 4, 2022, but he was not “currently” positive. See Id., Ex. 10 at 6-8, ECF No. 34-10. Plaintiff also explained that his mental health issues had become more severe as a result of “contracting [COVID-19] and being forced into isolation.” Id.
On March 11, the Court entered an order to show cause as to “why the Court should not stay litigation, including all discovery, until such a time that Plaintiff submits medical authorization clearing him to participate in all stages of litigation. Parties may file their written responses with the Court no later than 3/25/2022.” March 11, 2022 Minute Order, ECF No. 32.
Initially, Plaintiff failed to provide any substantive response; however, Plaintiff's wife entered a letter into the docket. See May 12, 2022 Letter, ECF No. 36; see also Pl.'s Resp. in Opp'n Mot Dismiss (stating only “I, Jeremy Lee Kelley, object to the Defendant's Motion for Dismissal.”).
Defendant filed a response arguing that a stay was inappropriate and urging the Court to dismiss this case pursuant to Rules 41(b) and 37(b)(2), (d). Def.'s Mot. Dismiss, ECF No. 33. As noted, the Court construed Defendant's response as a motion to dismiss and gave Plaintiff additional time and opportunity to respond:
The Court is in receipt of Defendant's Response to Order to Show Cause [33], which the Court construes as a motion to dismiss. Plaintiff has 21 days from the date of this Order to file a response outlining why the Court should not dismiss this action. The Court will take the matter under advisement upon receipt of Plaintiff's response, or 21 days from the date of this order, whichever occurs first.May 2, 2022 Minute Order, ECF No. 35.
Plaintiff did not provide a response within the deadline ordered by the Court. Over the next several weeks, however, Plaintiff engaged in inappropriate and discourteous treatment of opposing counsel and Court staff, which caused the Court to revoke Plaintiff's e-filing privileges and ordered Plaintiff to refrain from communicating with opposing counsel and Court staff:
Despite great lengths taken by the Court to facilitate Plaintiff's ability to pursue his claims, which included an explanation of the Court's expectations regarding professional courtesies in August 2021, Plaintiff's treatment of opposing counsel and Court staff has become increasingly disrespectful and inappropriate. See, e.g., Totten Decl., Ex. at 1 (referring to opposing counsel in e-mail correspondence as a “Pinniped” and stating, “Let me translate this for you. Arrf arrrrf arf arffff arf arrrrrf arf arf arrrrrf arf arf. If that was wrong, blame google translation.”), ECF No. 34-13.
In an e-mail responding to Court staff informing Plaintiff that the Local Rules require e-filing documents, Plaintiff responded, “How about you all go fuck yourself. File that.” Local Rule 83-7 requires parties before the Court to conduct themselves with the “decorum required for the fair and efficient administration of justice.” The Local Rules apply equally to individuals representing themselves Pro se. See LR 1-5(c).
On May 12, 2022, Plaintiff's spouse, Crystal Kelley, uploaded a letter on behalf of her husband through Plaintiff's CM/ECF
account in which she objected to Defendants' request that the Court dismiss this case. See ECF No. 36. Local Rule 5-9(e) prohibits docketing of letters to the Court “[u]nless directed by the Court[.]” The Court's order granting Plaintiff's application for CM/ECF registration granted only Plaintiff permission to utilize the electronic filing system, not Plaintiff's spouse, and explained to Plaintiff that use of the system is a “privilege that may be revoked at any time by the Court if the user is found to be abusing this privilege[.]” ECF No. 20.
Based on the foregoing, Plaintiff's e-filing privileges are hereby REVOKED. However, Plaintiff may still receive notices of electronic filings via e-mail. Plaintiff's response to Defendants' motion to dismiss [33] must be mailed or hand-delivered to U.S. District Court, District of Oregon, 2100 Wayne L. Morse U.S. Courthouse, 405 East Eighth Avenue, Eugene, OR 97401. Plaintiff is further ORDERED to refrain from communicating via e-mail with Court staff or opposing counsel regarding this lawsuit until after the Court has ruled on the pending motion to dismiss.May 19, 2022 Minute Order, ECF No. 37 (formatting altered).
While Defendant's motion to dismiss was under advisement, Plaintiff filed a motion titled “Plaintiff's Motion to Dismiss” in which he urges the Court to dismiss “without prejudice and without costs to either party.” Pl.'s Mot. Dismiss 1, ECF No. 40.
Although Plaintiff could have invoked Rule 41(a) as a basis for dismissal, the Court declines to construe the motion as such and will evaluate Defendant's motion to dismiss under Rule 41(b). Cf. Young v. Bishop Est., 497 Fed.Appx. 735, 736 (9th Cir. 2012) (“However, [the plaintiff] never invoked Rule 41(a)(1) in the proceedings below, and the district court had no obligation to transform, sua sponte, his Rule 41(a)(2) motion into a notice of dismissal under Rule 41(a)(1). The two provisions are not interchangeable, see Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1080 (9th Cir.1999), and the district court was not required to restyle [the plaintiff's] motion to avoid the consequences of his explicit pleading choices.”).
STANDARDS
Although courts generally hold Pro se litigants to more lenient standards, they remain bound by the Federal Rules of Civil Procedure and this District's Local Rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (holding the district court did not abuse its discretion for dismissing a Pro se plaintiff's claim for failing to follow a district court's Local Rules); see also LR 1-5(c) (defining counsel to include, inter alia, “any unrepresented or Pro se party”).
Rule 41 governs dismissals of actions brought in Federal Court. Specifically, Rule 41(b) governs involuntary dismissals and provides in relevant part:
Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) . . . operates as an adjudication on the merits.Fed. R. Civ. P. 41 (bolding in original; emphasis added).
Rule 37(b) allows for sanctions for failing to comply with court orders. Specifically, Rule 37(2)(A) provides in relevant part:
If a party . . . fails to obey an order to provide or permit discovery . . . the court where the action is pending may issue further just orders. They 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;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.Fed. R. Civ. P. 37(b)(2) (emphasis added). Rule 37(d) also permits courts to impose sanctions on a party who fails to attend its own deposition and such “[s]anctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).”
District courts must weigh five factors when evaluating whether dismissal is appropriate under Rule 41(b) and Rule 37(b)(2): “(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) the availability of less drastic sanctions.” Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (observing that “[t]he standards governing dismissal for failure to obey a court order are basically the same under either of these rules”).
DISCUSSION
I. Public Interest in Expeditious Resolution of Litigation
“The public's interest in expeditious resolution of litigation always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Plaintiff has effectively caused this “action to come to a complete halt” by failing to appear for his Court-ordered deposition. Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The Court denied Plaintiff's request to automatically re-schedule new depositions but gave Plaintiff the opportunity to move the case forward. Totten Decl. Ex. 9 at 1, ECF No. 34-9. However, the Court warned the Plaintiff “[s]uch late notice has jeopardized the ability of both parties to complete discovery, has protracted this litigation, and may result in sanctions” and ordered Plaintiff to attend the depositions, or produce documentation of a COVID-19 test performed within twenty-four hours. Id. Despite the Court's urging and warning, Plaintiff did not take steps to comply with the Court's orders. The first factor therefore weighs in favor dismissal.
II. The Court's Need to Manage its Docket
“The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest.” Pagtalunan, 291 F.3d at 642. This case is more than two years old and has consumed a significant amount of the Court's time. For example, the Court conducted multiple in-person discovery hearings during the COVID-19 pandemic in an attempt to facilitate Plaintiff's ability to pursue his claims. See ECF Nos. 26, 31. The Court also secured the Jury Assembly Room of the Wayne L. Morse Courthouse to allow Plaintiff to conduct deposition in compliance with local health advisories. Discovery Hearing Minutes, ECF No. 31. Accordingly, the second factor also weighs in favor of dismissal. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (concluding that the second factor supported dismissal for a case that “dragged on for over a year and a half before it finally was dismissed” and observing that during that time the case “consumed large amounts of the court's valuable time that it could have devoted to other major and serious criminal and civil cases on its docket”).
III. Prejudice to Defendant
“In determining whether a defendant has been prejudiced, [courts] examine whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.” Malone, 833 F.2d at 131. Without Plaintiff's deposition to secure testimonial admissions, Defendant cannot meaningfully prepare a defense in this case, which in turn deprives the Court of adjudicating the case on its full merits. See e.g., Id. (concluding the prejudice factor weighed in favor of dismissal where the plaintiff's actions impaired the defendant's ability to proceed to trial). Defendant has also incurred fees and costs associated with defending this case, including arranging for individuals to attend Court-ordered depositions. Id. (observing that “prejudice includes irremediable burdens or costs imposed on the opposing party”) (citation omitted). This factor also weighs in favor of dismissal.
IV. Public Policy Favoring Disposition on the Merits
Generally, the public policy favoring disposition on the merits counsels strongly against dismissal. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). However, Plaintiff's actions have severely impaired disposition on the merits. As the Ninth Circuit has explained, “where the plaintiffs themselves prevent their cases from moving forward, the public policy favoring resolution on the merits cannot weigh much, if at all, in their favor.” In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1234 (9th Cir. 2006); see also United States ex rel. Berglund v. Boeing Co., 835 F.Supp.2d 1020, 1053-54 (D. Or. 2011) (noting that “the public policy factor, standing alone, is insufficient to outweigh the other four factors if each is otherwise present”). As such, the Court concludes that the fourth factor is neutral.
V. Availability of Less Drastic Sanctions
“The district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” Malone, 833 F.2d at 131. In response to Plaintiff's failure to attend his deposition, the Court took the limited measure of issuing a show cause order as to “why the Court should not stay litigation, including all discovery, until such a time that Plaintiff submits medical authorization clearing him to participate in all stages of litigation.” March 11, 2022 Minute Order, ECF No. 32. The Court gave the parties two weeks to file written responses. Id. After Plaintiff failed to substantively respond within the timeframe allowed, the Court informed Plaintiff that it would treat Defendant's response to the show cause order as a motion to dismiss and gave Plaintiff an additional twenty-one days to respond. May 2, 2022 Minute Order, ECF No. 33. In other words, the Court considered the availability of a less drastic sanction-staying this case-to which Plaintiff failed to respond. Further, the Court directly put Plaintiff on notice that his lawsuit was subject to dismissal. Id.; see also Totten Decl, Ex. 9 at 1 (warning Plaintiff that his eleventh-hour notice that he would not attend his deposition “jeopardized the ability of both parties to complete discovery, has protracted this litigation, and may result in sanctions”), ECF No. 34-9.
Plaintiff failed to file a timely response and he became “increasingly disrespectful and inappropriate” in his correspondence with opposing counsel and Court staff. May 19, 2022 Minute Order, ECF No. 37 (citing Totten Decl., Ex. at 1 (referring to opposing counsel in e-mail correspondence as a “Pinniped” and stating, “Let me translate this for you. Arrf arrrrf arf arffff arf arrrrrf arf arf arrrrrf arf arf. If that was wrong, blame google translation.”)); see also id. (“In an e-mail responding to Court staff informing Plaintiff that the Local Rules require e-filing documents, Plaintiff responded, “How about you all go fuck yourself. File that.”).
In sum, given (1) the Court's consideration of a less drastic alternative; (2) explicit warnings that his lawsuit was subject to dismissal; (3) Plaintiff's subsequent agreement that dismissal is appropriate; and (4) Plaintiff's inappropriate behavior towards opposing counsel and Court staff in direct contravention of this Court's instructions regarding appropriate decorum, the Court concludes that the fifth factor weighs in favor of dismissal. Cf. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (finding the requirement that court consider less drastic alternatives may be satisfied by warning the litigant that failure to obey court order will result in dismissal); Fry v. Solomon, No. 08-cv-00475-AC, 2009 WL 10731039, at *2 (D. Or. June 8, 2009) (collecting cases “dismiss[ing] with prejudice actions where the plaintiff failed to prosecute or comply with court orders, whether or not the plaintiff is proceeding Pro se”), adopted, 2009 WL 10731038 (D. Or. June 30, 2009). The Court further concludes that dismissal with prejudice is appropriate in this case.
Because four of the five factors weigh in favor of dismissal with the remaining factor being neutral, dismissal of Plaintiff's suit with prejudice is appropriate. See Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (concluding that the “district court did not abuse its discretion in dismissing” the plaintiff's suit where “three factors strongly favor[ed] dismissal”).
RECOMMENDATION
For the reasons above, Defendant's motion to dismiss (ECF No. 33) should be GRANTED. Plaintiff's FAC (ECF No. 11) should be DISMISSED with prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).