Opinion
CV-18-04598-PHX-SMB (DMF)
01-06-2023
Don Allen Leroy McFarlin, Plaintiff, v. Paul Penzone, et al., Defendants.
REPORT AND RECOMMENDATION
HONORABLE DEBORAH M. FINE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned for pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 50 at 8)
Plaintiff Don Allen Leroy McFarlin (“Plaintiff”) initiated this action in December 2018. (Doc. 1) Defendants Melquiades and Gurrola noticed Plaintiff's deposition to take place on June 15, 2022. (Doc. 78) On July 12, 2022, Defendants Melquiades and Gurrola moved to compel Plaintiff to complete his deposition, asserting that Plaintiff had terminated his deposition and refused to answer questions regarding video recordings shown at the deposition. (Doc. 82) Plaintiff failed to respond to Defendants Melquiades and Gurrola's motion to compel. The Court granted the motion to compel and ordered Plaintiff to attend and participate in a second deposition, to “answer questions pertinent to the pending claims in his Second Amended Complaint,” and to answer questions regardless of whether Plaintiff believed video recordings shown at Plaintiff's deposition were fake. (Doc. 85 at 5) The Court reserved ruling on possible sanctions against Plaintiff until after Plaintiff's second deposition. (Id. at 5-6)
Although numerous filings in this matter as well as the Court's electronic docket refer to Defendant as Defendant Melquiades, several of Defendants Melquiades and Gurrola's filings after May 20, 2022 (see Docs. 75, 79, 82) refer to Defendant Melquiades as Defendant Melquides, while other filings contain the spelling reflected in the Court's docket (see Docs. 98, 103).
Defendants Melquiades and Gurrola subsequently noticed Plaintiff's second deposition for October 3, 2022. (Doc. 90) On October 26, 2022, Defendants Melquiades and Gurrola filed a motion for sanctions titled “Motion to Dismiss for Failure to Comply with Court Ordered Deposition.” (Doc. 92) In their motion for sanctions, Defendants Melquiades and Gurrola assert that Plaintiff terminated his second deposition and refused to answer questions regarding video recordings shown at the second deposition. (Doc. 92 at 3) Due to Plaintiff's failure to participate in his depositions as ordered, Defendants Melquiades and Gurrola request sanctions against Plaintiff, up to and including dismissal, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 30(d)(2), 37(b)(2)(A), and 41(b). (Id. at 1-2)
Plaintiff failed to respond to the motion for sanctions. In early November 2022, Plaintiff filed a November 3, 2022, letter he sent to counsel for Defendants Melquiades and Gurrola in which Plaintiff, among other things, refers to the events depicted in the video recordings. (Doc. 95)
As set forth more fully below, it is recommended that Plaintiff be sanctioned in the form of dismissal with prejudice pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 41(b). If a lesser, alternative sanction to dismissal is deemed appropriate, it is recommended that Plaintiff not be able to present any evidence contradicting video and/or audio recordings, including in Plaintiff's response to Defendants' pending motion for summary judgment, and that Plaintiff be precluded from presenting any damages evidence. In addition to any sanction imposed pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 41(b), it is also recommended pursuant to Fed.R.Civ.P. 30(d)(2) and 37(b)(2)(C) that Plaintiff be ordered to pay Defendants Melquiades and Gurrola their court reporter fees/expenses for Plaintiff's depositions on June 15, 2022, and October 3, 2022, including transcription costs.
I. GENERAL BACKGROUND AND PROCEDURAL POSTURE
On December 10, 2018, Plaintiff filed a pro se Complaint (Doc. 1) and filed an application to proceed in forma pauperis. (Doc. 2) Plaintiff also submitted three filings, styled as “Motion to Grant Claim.” (Docs. 5, 6, 7, 8) On March 27, 2019, the Court granted Plaintiff's application to proceed in forma pauperis, denied Plaintiff's three motions to grant claim, and dismissed the Complaint for failure to state a claim. (Doc. 9 at 1-4, 7-8) The Court allowed Plaintiff thirty days to submit an amended complaint. (Id. at 4-6) On March 29, 2019, Plaintiff filed an additional “Motion to Grant Claim.” (Doc. 11) The Court denied Plaintiff's motion (Doc. 11) as moot on April 3, 2019. (Doc. 12)
On April 22, 2019, Plaintiff filed a First Amended Complaint. (Doc. 14) The Court dismissed Plaintiff's First Amended Complaint for failure to state a claim and allowed Plaintiff thirty days to submit a second amended complaint. (Doc. 16 at 3-9)
On May 9, 2019, Plaintiff filed a Second Amended Complaint. (Doc. 17) In the Second Amended Complaint, Plaintiff named as Defendants Sheriff Paul Penzone; John Does No. 1 and No. 2, both deputy sheriffs at the Maricopa County Jail; and John Doe Correctional Health Staff. (Id. at 1-2) Plaintiff alleged two counts for relief under the Fourteenth Amendment: (1) that Defendant John Doe Officers used excessive force on Plaintiff, and (2) that Defendant John Doe Officers denied Plaintiff medical care. (Id. at 36, 9-10) The Court dismissed Plaintiff's Second Amended Complaint and this matter for failure to state a claim. (Doc. 18)
Upon Plaintiff's appeal of the Court's dismissal to the Ninth Circuit Court of Appeals (Doc. 21), the Ninth Circuit reversed the Court's dismissal of Plaintiff's Second Amended Complaint and remanded the matter to this Court on March 31, 2021. (Doc. 25) The Ninth Circuit determined that Plaintiff had stated an excessive force claim against Defendant John Does and a claim for failure to obtain medical care against Defendant John Does and John Doe Correctional Health Staff. (Id. at 3-7) On April 2, 2021, this Court allowed Plaintiff 120 days from the Court's Order for Plaintiff to discover, by subpoena or otherwise, the identity of one or more fictitiously named defendants and to file a notice of substitution for one or more defendants. (Doc. 26 at 2)
The Ninth Circuit did not find that Plaintiff had stated a claim against Sheriff Penzone. (See Doc. 25).
Plaintiff subsequently filed several motions to appoint counsel. (Docs. 27, 30, 37, 39, 47) The Court denied Plaintiff's motions to appoint counsel. (Docs. 29, 33, 38, 40, 48) On July 8, 2021, the Court instructed the Clerk of Court to issue a subpoena to Sheriff Penzone for Sheriff Penzone to disclose “the names of Maricopa County Sheriff's Office employees involved in the use of force on [Plaintiff] at the Fourth Avenue Jail on October 24, 2018, and any records disclosing the names of Maricopa County employees involved in assessing [Plaintiff's] medical needs following the use of force against him.” (Doc. 29 at 3-4) On October 11, 2021, Sheriff Penzone filed a notice of compliance with the Court's July 8, 2021, subpoena (Doc. 30). (Doc. 46)
On November 15, 2021, Plaintiff filed a notice of substitution naming Officer Gurrola, Officer Ortiz, and Sergeant Melquiades as Defendants. (Doc. 49) On November 19, 2021, the Court ordered that the Clerk of Court substitute Officers Gurrola and Ortiz for Defendant John Doe Officers and add Sergeant Melquiades as a Defendant. (Doc. 50 at 5-6) Plaintiff was directed to fill out and return service packets for the substituted officer defendants. (Id. at 6-7)
Plaintiff also filed a duplicative second notice of substitution in which Plaintiff stated that Officer Gurrola, Officer Ortiz, and Sergeant Melquiades were involved in the events alleged in the Second Amended Complaint. (Doc. 51).
In the November 19, 2021, Order, the Court also directed the Clerk of Court to issue a subpoena to the Maricopa County Correctional Health Services Director, requiring the Correctional Health Services Director to produce records disclosing the actual names of any Correctional Health Services staff who were involved in Plaintiff's medical assessment following the incident described in the Second Amended Complaint. (Id. at 4) The Court gave Plaintiff 120 days from the filing date of the Order to file a notice of substitution for Defendant John Doe Correctional Health Staff. (Id. at 6) On December 17, 2021, Defendants filed a notice of compliance with service of the subpoena to Correctional Health Services. (Doc. 53)
Shortly thereafter, Plaintiff sent a letter to the Court requesting additional time to fill out service packets for the substituted officer defendants (Doc. 54), and the Court extended the deadline for Plaintiff to complete service packets for and serve Defendants Gurrola, Ortiz, and Melquiades. (Doc. 55) On February 3, 2022, Defendants Melquiades and Gurrola waived service of the summons and Second Amended Complaint (Docs. 57, 58), and service was returned unexecuted as to Defendant Ortiz (Doc. 56).
On March 14, 2022, Defendants Melquiades and Gurrola filed their Answer to Plaintiff's Second Amended Complaint. (Doc. 59) Also on March 14, 2022, the Court issued a Scheduling and Discovery Order (Doc. 60), ordered the Clerk of Court to send Plaintiff a service packet for Defendant Ortiz, and extended the time for Plaintiff to serve Defendant Ortiz (Doc. 61).
On March 17, 2022, Plaintiff again moved for appointment of counsel. (Doc. 62) The Court denied Plaintiff's motion on March 28, 2022. (Doc. 66) On March 23, 2022, Plaintiff moved for an extension of time to serve Defendant Ortiz. (Doc. 64) The Court ordered the Clerk of Court to send Plaintiff a service packet for Defendant Ortiz and extended the time for Plaintiff to serve Defendant Ortiz. (Doc. 67 at 2)
On March 24, 2022, the Court dismissed without prejudice Defendant John Doe Correction Health Staff for failure to timely substitute. (Doc. 63)
Following service returned unexecuted a second time as to Defendant Ortiz in May 2022 (Doc. 73), the Court extended the time for service of Defendant Ortiz (Doc. 74). Plaintiff once again moved for appointment of counsel in May 2022 (Doc. 77), and the Court denied Plaintiff's motion on June 29, 2022. (Doc. 81)
Following service returned unexecuted a third time as to Defendant Ortiz in July 2022 (Doc. 83), on August 5, 2022, the Court ordered Plaintiff to show cause as to why Defendant Ortiz should not be dismissed without prejudice for Plaintiff's failure to serve Defendant Ortiz. (Doc. 84) On September 2, 2022, Plaintiff filed a response to the Court's August 5, 2022, Order to Show Cause as to Plaintiff's failure to serve Defendant Ortiz and stated that he did not wish to pursue a claim against Defendant Ortiz. (Doc. 86) After a Report and Recommendation for dismissal of Defendant Ortiz without prejudice to which Plaintiff did not object (Doc. 88), the Court dismissed Defendant Ortiz without prejudice on September 27, 2022 (Doc. 91).
On November 21, 2022, the last day to file dispositive motions per the Court's Scheduling and Discovery Order (Doc. 60 at 2), Defendants Melquiades and Gurrola filed a motion for summary judgment (Docs. 98, 99). On November 23, 2022, the Court issued an order for Plaintiff's response pursuant to Randv. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc). (Doc. 101) The November 23, 2022, Order set a briefing schedule requiring that Plaintiff respond no later than thirty (30) days from the date of the Order and that Defendants reply within fifteen (15) days of service. (Id. at 3)
II. DEFENDANTS MELQUIADES AND GURROLA ATTEMPT TO DEPOSE PLAINTIFF AND FILE MOTIONS TO COMPEL AND FOR SANCTIONS
In the Court's March 14, 2022, Scheduling and Discovery Order, the Court allowed Defendants Melquiades and Gurrola leave to take Plaintiff's deposition pursuant to Fed.R.Civ.P. 30(a)(2) no later than September 30, 2022. (Doc. 60 at 2) On June 7, 2022, Defendants Melquiades and Gurrola filed a notice that Plaintiff's deposition would take place on June 15, 2022, at 9:00 a.m. by video-conference. (Doc. 78)
Leave to proceed telephonically was also granted. (Doc. 60 at 2).
Although the notice was filed by counsel for Defendants Gurrola and Melquiades, the notice was signed by Defendants Melquiades and Gurrola's counsel as counsel for Sheriff Penzone in what the Court must assume was a clerical error. (See Doc. 78 at 1-2).
On July 12, 2022, Defendants Melquiades and Gurrola filed a Motion to Compel Plaintiff to Complete his Scheduled Deposition (Doc. 82), which attached excerpts of Plaintiff's June 15, 2022, deposition and a previous May 2022 letter from Plaintiff (Docs. 82-1, 82-2). In Defendants Melquiades and Gurrola's Motion to Compel, Defendants Melquiades and Gurrola stated that Plaintiff was shown surveillance video of the events underlying the Second Amended Complaint (“the surveillance video”) and that Plaintiff believed the video was “fake.” (Doc. 82 at 2) Defendants Melquiades and Gurrola accurately reported that:
[blefore any questions were asked, Plaintiff immediately wanted to know whether he was “supposed to be the person leaning against the wall.” When undersigned counsel asked Plaintiff to wait until the video was played and he is asked questions, he walked away from the computer he was in front of and refused to return. Exhibit 1 at 42:17 - 43:16.
Despite repeated requests for Plaintiff to continue the depositions, and repeated warnings that undersigned counsel would seek a dismissal of the Complaint if Plaintiff refused to continue the deposition, Plaintiff refused to continue, and the deposition was terminated. Exhibit 1 at 43:19 - 45:10.(Doc. 82 at 3; see also Doc. 82-1)
The June 15, 2022, video-conference deposition began at 9:09 a.m. and ended at 10:07 a.m. (Doc. 82-1 at 2, 3, 13).
In their motion to compel, Defendants Melquiades and Gurrola stated that after the deposition, counsel for Defendants conferred with Plaintiff regarding a continuation of the deposition but that Plaintiff expressed a belief that he was not required to participate in depositions and that the Court had not ordered him to do so. (Id. at 3-4) Also in their motion to compel, Defendants Melquiades and Gurrola requested that the Court order Plaintiff to attend a second deposition and to answer questions regarding the surveillance video. (Id. at 5) Defendants Melquiades and Gurrola also requested that if Plaintiff did not attend a second deposition or did not answer questions regarding the surveillance video at a second deposition, Plaintiff “be prohibited from offering testimony or evidence that contradicts any surveillance videos of the events described in his Second Amended Complaint.” (Id.)
Plaintiff did not respond to Defendants Melquiades and Gurrola's motion to compel.
On August 25, 2022, the Court granted the motion to compel and ordered:
that Plaintiff shall attend and fully participate in a second deposition as noticed by Defendants' counsel. At the deposition, Plaintiff shall answer questions pertinent to the pending claims in his Second Amended Complaint, including questions related to video and/or audio recordings. Plaintiff shall answer deposition questions regardless of whether or not he believes the recordings, or any portions thereof, are fake.(Doc. 85 at 5) The Court reserved ruling on Defendants Melquiades and Gurrola's request for sanctions until after Plaintiff's second deposition setting, and the Court extended the deadline for deposing Plaintiff to October 28, 2022. (Id. at 5-6)
On September 22, 2022, Defendants Melquiades and Gurrola filed a notice that Plaintiff's second deposition would take place on October 3, 2022, at 9:00 a.m. via video-conference. (Doc. 90)
Defendants Melquiades and Gurrola had noticed Plaintiff's continued deposition for September 22, 2022. (Docs. 87, 89) Thereafter, Plaintiff's deposition was reset to October 3, 2022. (Doc. 90).
On October 26, 2022, Defendants Melquiades and Gurrola filed the motion for sanctions, captioned as a motion to dismiss, presently before the Court. (Doc. 92) In their motion, Defendants Melquiades and Gurrola request this action “be dismissed with prejudice for Plaintiff's failure to comply with a court order requiring him to attend and fully participate in a second deposition, including answering all questions pertinent to the pending claims and questions related to video and/or audio recordings.” (Id. at 1-2) Defendants alternatively request that Plaintiff “be sanctioned by prohibiting him from offering testimony or evidence that contradicts any surveillance video depicting the event described in the Second Amended Complaint.” (Id.) Defendants also request that Plaintiff be precluded from presenting any damages evidence. (Id. at 7, 9)
Defendants Melquiades and Gurrola subsequently filed the excerpted transcript of Plaintiff's October 3, 2022, deposition to which the defendants referred in their motion for sanctions. (Doc. 94) The excerpted transcript reflects Defendants' counsel attempts to question Plaintiff regarding the surveillance video. The excerpts include:
Q. All right. So we stopped [the video] at 3:41:07 and they are handcuffing you now, correct?
A. Exactly.
Q. Did you resist handcuffing?
A. No, I did not, because they already bumped my head up against the wall. I thought my life was over and done with because of the way that they slammed me against the wall.
You have to understand one thing, okay? I was 73 or whatever it was at that time, and now I'm 76, okay? Why would they even bother handcuffing meand slamming me against the wall at my age when I didn't do a dang thing except sitting there waiting for me to go trial, period?
So you can't cover up any of this stuff, okay? You can try, all right, but that's not gonna work because what happened happened.
And if I was you, I would -- hopefully I sleep good at night because you are trying to make something that your way did not happen but did happen that you only refuse to say it happened. You can see it right there, too.
Q. Mr. McFarlin, I asked you a question and you answered it so I am going to object as being -
A. Well, I ain't gonna answer no more of yours. How's that?
Q. So this is a question and answer session.
A. I said I am not going to answer any more until you finish -- let me finish.
MR. TRULLINGER: All right. I'm going to play it again from 3:41:07 for a few more minutes, okay, or a few more seconds here.
(Video started and then paused.)
BY MR. TRULLINGER:
Q. So now we are at 3:41:20. Do you see them patting you down now?
A. I said I'm not answering any of your questions until you let me finish what I want to say. So no, this interview is going to be over in a hot second if you don't clear it up.
Q. Mr. McFarlin, this is just a simple question -
A. I was having a simple answer but you have refused to listen to it. So if you can't listen to mine, I'm definitely not going to listen to yours.
Q. I am going to try again.
A. No, don't try again because if I can't answer my question I'm not going to answer you.
Q. All right. What were you going to say that I didn't let you finish? Go ahead.
A. Like -- thank you for letting me finish.
As you can see, they slammed me against the wall and now they are handcuffing me, okay? They slammed me into the isolation tank. A little while later the sergeant comes by and says, “Oh, they made a mistake. You didn't do anything wrong. It was somebody else.” Okay? That's what happened, period.
You can't cover it up. You can't come up with any other kind of excuse except to try to deny what actually happened, and I don't appreciate people
that lie.
I might be a crook and a criminal, but you know what I'm in prison for? Burglarizing my own damn house, after 44 years of being married. So don't tell me about it, okay? I don't lie.(Doc. 94-1 at page 6, line 2, to page 8, line 14)
Mr. Trullinger is counsel for Defendants Melquiades and Gurrola. (See Doc. 94-1 at 4).
Thereafter, counsel for Defendants Melquiades and Gurrola continued playing the surveillance video for Plaintiff and continued to try to question Plaintiff about the video. (Id. at 7-12) For example:
Q. And you agree with me that this tank has a number of people with orange prison outfits on and a few people with -
A. Hold it. What's that say on the back of his shirt?
Q. I don't know. Do you know what it says?
A. Yeah, but I'm not telling you.
Q. Okay. He has an orange uniform on, right, or an orange outfit on?
A. Yeah.
Q. So it could be from prison or it could be from jail, correct?
A. No. I was the only one from prison there because once a person comes to prison and everybody sees your prison outfit, they'll always have questions for you, okay?
And like I said, I was the only one with orange on in that tank, period. I don't know where you come up with this but they never even had orange at that time. They only wore black and white stripes, period.(Id. at page 10, line 5, to page 11, line 2) As another example:
Q. And it looks like you just stood up and you're just about to walk out yourself, correct?
A. I guess.(Id. at page 11, lines 23-25) After watching an additional segment of the surveillance video, Plaintiff refused to answer further questions and left the deposition:
Q. So at 3:40:58 I stopped it again. And then again, that's the same incident that we saw before just from inside the holding tank, correct?
A. Apparently, yes. I don't remember where all these people get orange jumpsuits because I don't know. They didn't have them when I was there in
2018, period. I was the only one wearing orange from prison, period.
They are trying to come up with too many excuses.
Look, I don't know what you're doing or trying to do, okay, but as far as I'm concerned this interview is over with. I have nothing else to say to you, all right?
You see what they did. You are trying to come up with excuses why not to, and I'm not going to go for it so I'm done with this interview, period. Don't ask me again.
Q. Mr. McFarlin, hold on just a second, please.
Mr. McFarlin?
MR. TRULLINGER: Mr. Bojorquez, are you putting him back on or maybe pull up the headphones so he can hear me?
Hello? Mr. McFarlin?
Is he still available by chance?
MR. BOJORQUEZ: No, he left.
MR. TRULLINGER: We're not done with the deposition. He left?
MR. BOJORQUEZ: Yes.
MR. TRULLINGER: Is there any way to get him back in here by chance or no?
MR. BOJORQUEZ: I can ask him. He said he is not coming back but let me ask him.
MR. TRULLINGER: Would you please do that?
MR. BOJORQUEZ: He said he is done with it.
MR. TRULLINGER: He is not going to come back?
MR. BOJORQUEZ: He is not coming back.
(Video stopped.)
MR. TRULLINGER: Thank you for your assistance there.
Let's go ahead and make a record here that Mr. McFarlin has walked out of the deposition a second time.
After looking at some additional videos, he said he is not coming back. So as I told him last time, I am going to move for a motion to dismiss for his failure
to participate and complete the deposition.
I think that's all I have. We might as well go ahead and end the deposition here. Thank you.(Id. at page 12, line 12, to page 13, line 10) Plaintiffs second deposition began at 9:25 a.m. and was terminated by Plaintiff at 10:03 a.m. (Doc. 94-1 at 2, 4, 14)
Mr. Bojorquez is listed as a “companion” in the deposition transcript. (See Doc. 94-1 at 4).
Plaintiff failed to respond to Defendants Melquiades and Gurrola's October 26, 2022, motion for sanctions.
In early November 2022, Plaintiff filed a November 3, 2022, letter he sent to counsel for Defendants Melquiades and Gurrola in which Plaintiff, among other things, refers to the events depicted in the video recordings. (Doc. 95) In the letter, Plaintiff asserts that the surveillance video supports Plaintiff's view of the events underlying the Second Amended Complaint, and Plaintiff states that Defendants Melquiades and Gurrola have “no legitimate basis” for a motion to dismiss. (Id. at 1-2) Arguing that he “never was given any kind of order[,]” Plaintiff asserts that counsel for Defendants Melquiades and Gurrola is causing delay in this matter and has not provided Plaintiff discovery. (Id. at 1) In the letter, Plaintiff argues that Defendants Melquiades and Gurrola's counsel is attempting to make excuses for what Plaintiff alleges happened in the surveillance video. (Id.)
III. APPLICABLE LEGAL STANDARDS
The issues before the Court are whether or not to impose sanctions on Plaintiff and what sanctions are appropriate for Plaintiff's failure to fully participate in his depositions as ordered by the Court.
Sanctions for a party's failure to complete a deposition are available under Fed.R.Civ.P. 37(b)(2)(A) and (C), as well as Fed.R.Civ.P. 30(d)(2). Sanctions imposed under Fed.R.Civ.P. 37 are “left to the sound discretion of the trial judge.” O'Connell v. Fernandez-Pol, 542 Fed.Appx. 546, 547-48 (9th Cir. 2013). The purpose of Fed.R.Civ.P. 37 is to “protect courts and opposing parties from delaying or harassing tactics during the discovery process.” Cunningham v. Hamilton County, 527 U.S. 198, 208 (1999).
Fed. R. Civ. P. 37(b)(2)(A) states that 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.
For a court to impose the sanction of dismissal under Fed.R.Civ.P. 37(b)(2)(A)(v), “the losing party's non-compliance must be due to willfulness, fault, or bad faith.” Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981) (citing Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212 (1958)). Willfulness, fault, or bad faith constitutes conduct that is “not shown to be outside the control of the litigant[.]” Henry v. Gill Industries, 983 F.2d 943, 948 (9th Cir. 1993) (citing Fjelstad v. American Honda Motor Co., Inc., 762 F.2d 1334, 1341 (9th Cir. 1985)).
Once a court determines that a party's non-compliance was due to willfulness, fault, or bad faith, the court then weighs five factors to determine if dismissal is an appropriate sanction: “(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.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (quoting Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)). Further, before dismissal, a court should consider (1) the feasibility and inappropriateness of alternative sanctions; (2) the implementation of alternative sanctions; and (3) whether Plaintiff has been warned about dismissal. Malone, 833 F.2d at 132.
Instead of or in addition to the sanctions available under Fed.R.Civ.P. 37(b)(2)(A), where a party fails to obey a discovery order:
the court must order the disobedient party, the attorney advising that party, or both 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(b)(2)(C). Substantial justification exists where “there is a genuine dispute [] or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1998) (internal citations omitted). The burden to show substantial justification or circumstances that would make monetary sanctions unjust is on the party to be sanctioned. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983) (citing David v. Hooker, Ltd., 560 F.2d 412, 419 (9th Cir. 1977)). A party's indigent status “does not necessarily make an award of expenses unjust.” Croomes v. Stream Global Services-AZ, Inc., 2012 WL 748307, at *2 (D. Ariz. Mar. 8, 2012) (citing Bosworth v. Record Data of Maryland, Inc., 102 F.R.D. 518, 521 (D.Md. 1984)); see also Rodrigues v. Ryan, 2016 WL 4498458, at *4 (D. Ariz. Aug. 26, 2016) (indigent status one factor in awarding expenses as a sanction but not dispositive).
In addition to the sanctions available under Fed.R.Civ.P. 37(b)(2)(A) and (C), Fed.R.Civ.P. 30(d)(2) gives the Court discretion to “impose an appropriate sanction- including the reasonable expenses and attorney's fees incurred by any party-on a person who impedes, delays, or frustrates the fair examination of the deponent.” The primary form of sanctions allowed under Fed.R.Civ.P. 30(d)(2) is monetary sanctions. See Kent v. Cummings, 2010 WL 2643538, at *7 (D. Ariz. June 29, 2010). Such sanctions may “include the costs of bringing a motion to obtain further depositions as well as the cost of retaking a deposition.” BNSF Ry. Co. v. San Joaquin Valley R. Co., 2009 WL 3872043, at *3 (E.D. Cal. Nov. 17, 2009).
Further, Defendants Melquiades and Gurrola also argue that dismissal pursuant to Fed.R.Civ.P. 41(b) is appropriate. (Doc. 92 at 7-8). Pursuant to Fed.R.Civ.P. 41(b), “[i]f 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.” Fed.R.Civ.P. 41(b); see also Link v. Wabash R. Co., 370 U.S. 626, 629-33 (1962). The same five factors are to be weighed under Fed.R.Civ.P. 41(b) as set forth above for Fed.R.Civ.P. 37(b)(2)(A). See Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406, 1412 n.5 (9th Cir. 1990); see also Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 n.1 (9th Cir. 1988). Unless stated otherwise in the Court's order, dismissal pursuant to Fed.R.Civ.P. 41(b) “operates as an adjudication on the merits.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).
Where dismissal is for non-compliance with a discovery order, the Court may rely solely on Fed.R.Civ.P. 37 and need not resort to Fed.R.Civ.P. 41(b). Societe Internationale, 357 U.S. at 207. In any event, the Court applies the same standard for dismissal pursuant to either Fed.R.Civ.P. 37 or 41(b). See, e.g., Benge v. Wexford Health, 2020 WL 601668, at *2 (D. Ariz. Feb. 7, 2020) (dismissing pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 41(b)); Frances v. Accessible Space, Inc., 2019 WL 2208230, at *6 (E.D. Cal. May 22, 2019) (same).
IV. ANALYSIS
A. Dismissal is an appropriate sanction under Fed.R.Civ.P. 37 and 41(b)
In their Motion to Dismiss, Defendants Melquiades and Gurrola argue that dismissal pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 41(b) is the most appropriate sanction for Plaintiff's failure to complete his Court-ordered depositions. (Doc. 92 at 3-8) Defendants alternatively request that Plaintiff “be sanctioned by prohibiting him from offering testimony or evidence that contradicts any surveillance video depicting the event described in the Second Amended Complaint.” (Id. at 2, 8-9) Defendants also request that Plaintiff be precluded from presenting any damages evidence because Plaintiff ended his depositions “before Plaintiff could be asked any questions about his alleged damages.” (Id. at 7; see also id. at 9)
Defendants Melquiades and Gurrola correctly assert that in Plaintiff's depositions:
when Plaintiff is confronted with surveillance videos of the incident from multiple angles, he refuses to answer questions about any portion of a video that is inconsistent with his story, calls the videos “fake,” insists on telling his version of events instead of answering questions, and then walks away. Plaintiff admitted it is him in the surveillance videos. See Exhibit 1 at 70:5 -71:4. However, he became angry when asked to limit his answer to the question posed and wanted to give a narrative response instead. See Exhibit 1 at 61:2 - 63:14. Finally, he simply refused to answer any further questions and walked out of the deposition prior to defense being able to finish his deposition.(Id. at 3) In support of their motion, Defendants Melquiades and Gurrola also correctly state that Plaintiff walked out of the second deposition “because the surveillance video showed the inmates inside the holding tank wearing orange jail/prison uniforms or civilian clothes, whereas Plaintiff insisted the jail inmates were all wearing black and white stripes and that he was the only one wearing all orange. See October 3, 2022, deposition of Don Allen Leroy McFarlin at 70:4 - 75:11[.]” (Id.)
See Docs. 82-1 and 94-1. Plaintiff uses the word “fake” in his first deposition. (Doc. 821 at 6 (deposition transcript page 29, line 4)).
1. Plaintiff's conduct was willful and in bad faith
To impose the sanction of dismissal pursuant to Fed.R.Civ.P. 37(b), the Court must first find that Plaintiff's failure to comply with Court Orders was due to “willfulness, fault, or bad faith,” Sigliano, 642 F.2d at 310, and was not due to circumstances outside Plaintiff's control. Henry, 983 F.2d at 948. On two separate dates, Plaintiff plainly refused to complete his deposition. (See Doc. 82 at 3; Doc. 92 at 2-3) Plaintiff's failure to complete his Court-ordered depositions (see Doc. 85) is a direct result of Plaintiff's own conduct and did not result from circumstances outside Plaintiff's control. Plaintiff intentionally and unilaterally chose to end each of his depositions, despite the Court having expressly ordered that Defendants may take Plaintiff's deposition (Doc. 60 at 2) and having expressly ordered that Plaintiff participate in a second deposition and answer questions about the surveillance video “regardless of whether or not he believes the recordings, or any portions thereof, are fake” (Doc. 85 at 5). Even if Plaintiff's recollection of the events is different than reflected in the video and audio recordings about which Plaintiff was being questioned at his deposition, Plaintiff's failure to answer questions and failure to complete his deposition was willful and in bad faith.
Further, Plaintiff's refusal to answer questions regarding the surveillance video shown at his depositions was not justified. Plaintiff's refusal to answer was not “necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed.R.Civ.P. 30(c). Plaintiff did not contend that he was ending the deposition to preserve a privilege or to enforce a limitation of this Court, nor did Plaintiff present a motion to terminate or limit his deposition pursuant to Fed.R.Civ.P. 30(d)(3). Plaintiff could not end his deposition simply because he believed that the surveillance video contradicted Plaintiff's recollection of the events alleged in the Second Amended Complaint. (See Doc. 95 at 1) If Plaintiff objected to Defendants Melquiades and Gurrola's questions regarding the surveillance video, Plaintiff's objection would have been noted on the record, and the deposition would have continued. See Fed.R.Civ.P. 30(c)(2) (An objection “must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection.”). Plaintiff's conduct at his depositions was willful and in bad faith such that dismissal may be a proper sanction. See, e.g., Adriana, 913 F.2d at 1412 n.5 (accepting district court's finding that plaintiff's refusal to appear for depositions was willful and in bad faith); Mendez v. Community Health Clinics, Inc., 2021 WL 467195, at *10-11 (D. Id. Feb. 9, 2021) (plaintiff's lack of compliance with depositions willful and in bad faith).
2. The five factors
Having determined that Plaintiff's conduct was willful and in bad faith, the Court weighs five factors to determine whether dismissal is the most appropriate sanction. See Section III, supra; In re Phenylpropanolamine, 460 F.3d at 1226.
Here, the first factor, the public's interest in expeditious resolution of litigation, weighs in favor of dismissal. Plaintiff's claims, which have been pending in this Court since December 2018 (Doc. 1), have already been delayed due to Plaintiff's refusal to participate in two depositions. (See Docs. 82, 85, 92) It is Plaintiff's duty to prosecute his case, Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978), yet Plaintiff's lack of cooperation with his depositions hinders the expeditious and appropriate progression of his case. A third deposition attempt would delay these proceedings, which are already at the dispositive motion phase. Further, the Court has no confidence that Plaintiff's behavior would be different during a third deposition setting.
As for the second factor, the Court's need to manage its docket, the Court must enforce its orders for effective case and docket management. Plaintiff's blatant disregard of the Court's Order that Plaintiff attend and answer questions at a second deposition setting directly undermines the Court's ability to effectively manage the litigation of this case and to manage the Court's docket.
As for the third factor, the risk of prejudice to Defendants, Defendants Melquiades and Gurrola would suffer prejudice if dismissal is not imposed as a sanction for Plaintiff's conduct. Plaintiff initiated this action over four years ago in December 2018, and delay in resolution in and of itself is prejudicial given the age of the events at issue. Further, the time required to notice and conduct a third deposition of Plaintiff would impede the orderly briefing and decision of Defendants' pending motion for summary judgment. Moreover, if the case is not dismissed, Defendants Melquiades and Gurrola will have to defend against Plaintiff's claims without the testimony that Plaintiff would have provided during his depositions. Without Plaintiff fully submitting to deposition, Defendants Melquiades and Gurrola cannot assess Plaintiff's testimony regarding the events at issue, nor can Defendants Melquiades and Gurrola assess Plaintiff's claimed damages. Plaintiff's failure to complete his Court-ordered depositions would thus prejudice Defendants Melquiades and Gurrola at trial by impairing their ability to defend against Plaintiff's claims. See In re Phenylpropanolamine, 460 F.3d at 1227 (“A defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.”).
As for the fourth factor, the public policy favoring disposition of a case on the merits, dismissal of Plaintiff's claims at this stage typically would not support “the public policy favoring disposition of cases on their merits[.]” Id. at 1226. However, the Ninth Circuit has “recognized that this factor ‘lends little support' to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction.” Id. at 1228. It is Plaintiff's responsibility to move his case toward disposition on the merits, Fidelity, 587 F.2d at 29, yet Plaintiff's refusal to complete his depositions and comply with Court Orders has hindered the resolution of his case on the merits. Further, Plaintiff's refusal to answer questions about video of the alleged events hinders resolution of the case on its merits.
As for the fifth factor, the availability of less drastic sanctions, Defendants Melquiades and Gurrola argue that dismissal of this matter is the most appropriate sanction because “Plaintiff has impeded the progress of his own lawsuit[,]” “has been given multiple chances to move forward with his complaint and he has willfully refused[,]” and “has willfully defied two court orders[.]” (Doc. 92 at 6-8) As discussed in Section IV(A)(3), infra, the Court finds that less drastic sanctions than dismissal with prejudice are not feasible and/or are not appropriate given the record in this matter, particularly given that the previously implemented order that Plaintiff sit for his deposition a second time and answer questions was ineffective.
3. Alternative sanctions to dismissal with prejudice are not feasible or appropriate
Alternative sanctions to dismissal with prejudice have already been implemented with unsuccessful results. Previously, the Court specifically ordered Plaintiff to participate in a second deposition and to properly participate in his deposition. Based on the record, the Court has no confidence that Plaintiff would comply with another order that Plaintiff properly participate in a deposition. Further, a third deposition would impede the orderly briefing and decision of Defendants' pending motion for summary judgment.
Given the various factors discussed above, including prejudice to Defendants Melquiades and Gurrola from Plaintiff's failure to properly participate in his deposition, monetary sanctions alone would be insufficient. Also, as Defendants accurately point out, Plaintiff apparently lacks the resources to pay significant monetary sanctions. (Doc. 92 at 9) Plaintiff's willful, repeated failure to complete each of his depositions supports dismissal pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v) and 41(b) as an appropriate sanction rather than monetary sanctions alone. See, e.g., Adriana, 913 F.2d at 1412-13 (plaintiff's “wilful [sic] disruption of the discovery process” and disobedience of court orders supported dismissal as sanction); Sanders v. Aranas, 2008 WL 4845233, at *4-5 (E.D. Cal. Nov. 7, 2008) (plaintiff's failure to appear at two depositions supported dismissal as sanction); Hyde & Drath v. Baker, 24 F.3d 1162, 1173 (9th Cir. 1994) (affirming dismissal as sanction for plaintiffs' failure to attend depositions); Mendez v. Community Health Clinics, Inc., 2022 WL 2340805, at *1 (9th Cir. June 29, 2022) (affirming sanction of dismissal for plaintiff's failure to appear at two depositions).
In their motion for sanctions, Defendants Melquiades and Gurrola suggest as an alternative sanction pursuant to Fed.R.Civ.P. 37(b)(2)(A)(ii) that this Court may prohibit Plaintiff from offering testimony or other evidence in two areas: (1) contradicting the surveillance video, including in response to Defendants' pending motion for summary judgment (Doc. 98); and (2) supporting Plaintiff's alleged damages. (Doc. 92 at 6-7, 9) However, these sanctions are insufficient, particularly given the applicable law regarding video evidence. Where video evidence is available in an excessive use-of-force case, the Supreme Court has directed that courts “should [ ] view[ ] the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 380-81 (2007). Further, the Court has no confidence that a sanction less than dismissal would suffice to remedy Plaintiff's conduct and prevent further non-compliance with Court Orders.
“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). This does not mean that courts no longer take the nonmovant's version of the facts as true where video evidence, seen in a light most favorable to the nonmoving party, leaves room for genuine dispute. Courts must still draw all reasonable inferences in the nonmovant's favor. See Blankenhorn v. City of Orange, 485 F.3d 463, 468 n.1 (9th Cir. 2007)).
4. Plaintiff was warned
Finally, Plaintiff was warned about the possibility of dismissal as sanction. In the Court's November 19, 2021, Screening and Service Order, the Court warned that it “may dismiss an action for failure to comply with any order of the Court[.]” (Doc. 50 at 5) (citing Ferdikv. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). Further, in the Court's August 25, 2022, Order granting Defendants Melquiades and Gurrola's motion to compel, the Court expressly reserved ruling on sanctions until after Plaintiff's second deposition. (Doc. 85 at 5) In the Court's August 25, 2022, Order compelling Plaintiff to participate in his second deposition, the Court stated that it would address “whether and what sanctions should be imposed on Plaintiff for walking out of his June 15, 2022, deposition” after Plaintiff's second deposition and ordered Defendants Melquiades and Gurrola to “file a motion for sanctions if and as appropriate” no later than 30 days after Plaintiff's second deposition. (Doc. 85 at 4-5) Moreover, in the first and second attempts to depose Plaintiff, Defendants Melquiades and Gurrola's counsel warned Plaintiff that Defendants Melquiades and Gurrola would seek dismissal if Plaintiff did not cooperate with the depositions. (Doc. 82-1 at page 11, line 20, to page 12, line 22; Doc. 94-1 at 14, lines 6-8)
Although the Court did not specifically warn Plaintiff a second time that this action may be dismissed for non-compliance with the Court's August 25, 2022, Order compelling Plaintiff to participate in his second deposition (Doc. 85), “[a]n explicit warning is not always required, at least in a case involving ‘egregious circumstances.'” United Statesfor Use and Ben. Of Wiltec Guam, Inc. v. Kahaluu Const. Co., Inc., 857 F.2d 600, 605 (9th Cir. 1988). The Ninth Circuit has observed that “[a] plaintiff can hardly be surprised by a harsh sanction in response to willful violation of a pretrial order. Rules 16(f) and 41(b) explicitly state that dismissal may be ordered for violation of a court order.” Malone, 833 F.2d at 133.
Plaintiff was on notice that sanctions, including dismissal, were at stake if he again failed to answer questions at his deposition and/or ended the deposition before it was completed. Accordingly, under the circumstances before the Court, dismissal is appropriate pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 41(b) for Plaintiff's failure to comply with Court orders.
B. Monetary sanctions under Fed.R.Civ.P. 30 and 37(b)(2)(C) are also appropriate
Defendants Melquiades and Gurrola argue that sanctions pursuant to Fed.R.Civ.P. 30(d)(2) are also appropriate, because Plaintiff could not properly refuse to answer deposition questions regarding the surveillance video. (Doc. 92 at 8) Defendants Melquiades and Gurrola assert that a deponent may only refuse to answer a deposition question in three circumstances under Fed.R.Civ.P. 30(c)(2): “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” (Id. at 8) (quoting Ollison v. Wexford Health Sources, Inc., 337 F.R.D. 165, 170 (C.D. Ill. 2020)). As for the proper sanctions under Fed.R.Civ.P. 30(d), Defendants Melquiades and Gurrola state that Plaintiff is unlikely to have funds for monetary sanctions and has already been unsuccessfully ordered to participate in a second deposition. (Id. at 9) As alternative sanctions, Defendants Melquiades and Gurrola assert that this Court should prohibit Plaintiff from offering testimony or evidence that contradicts the surveillance video shown at Plaintiff's depositions. (Id.) Defendants Melquiades and Gurrola also request that Plaintiff be precluded from presenting any damages evidence. (Id. at 7, 9)
In addition to Fed.R.Civ.P. 30(d)(2), which gives the Court discretion to impose monetary sanctions on a disobedient party, Fed.R.Civ.P. 37(b)(2)(C) requires the Court to order the disobedient party to pay the reasonable expenses caused by the party's disobedience, unless such disobedience was “substantially justified” or such an order would be unjust in the circumstances. Plaintiff has not shown that his failure to complete his depositions was substantially justified, nor does the record support such.
As discussed in Section IV(A) supra, Plaintiff did not properly object to deposition questions regarding the surveillance video pursuant to Fed.R.Civ.P. 30(c)(2). Plaintiff's refusal to answer was not “necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed.R.Civ.P. 30(c)(2). Plaintiff did not even attempt to contend that he was ending the deposition to preserve a privilege or to enforce a limitation of this Court, nor did Plaintiff present a motion to terminate or limit his deposition pursuant to Fed.R.Civ.P. 30(d)(3). Plaintiff may not excuse his failure to complete his deposition due to disagreement over the surveillance video's reflection of the events alleged in the Second Amended Complaint. (See Doc. 95 at 1) If Plaintiff objected to the surveillance video or to Defendants Melquiades and Gurrola's questions regarding the surveillance video, Plaintiff's objection would have been noted on the record, and the deposition would have continued. See Fed.R.Civ.P. 30(c)(2). Accordingly, Plaintiff's refusal to complete his deposition was not justified.
Moreover, Plaintiff cannot argue that no Court Order allowed or compelled his deposition. (See Doc. 82 at 3; Doc. 95 at 1) The Court specifically allowed Defendants Melquiades and Gurrola to take Plaintiff's deposition and subsequently ordered Plaintiff to fully participate in his deposition despite Plaintiff's opinion that the video he was being shown was fake. (Docs. 60, 85) In contravention of these orders, Plaintiff willfully failed to complete his depositions on two occasions.
Plaintiff has not shown and the record does not reveal circumstances that would make an award of at least some fees and expenses to Defendants Melquiades and Gurrola unjust. Although Plaintiff is proceeding in forma pauperis (see Docs. 2, 9), an award of some reasonable expenses incurred due to Plaintiff's failure to complete his depositions, such as court reporter fees, would serve the interests of justice. Given Plaintiff's willful, repeated failure to complete his depositions, the Court may impose monetary sanctions against Plaintiff in the form of reasonable expenses. See, e.g., Barker v. Hertz Corp., 2008 WL 2705152, at *7-8 (D. Ariz. June 26, 2008) (awarding reasonable expenses despite plaintiff's indigency due to willful and bad faith discovery violations).
Because of Plaintiff's incarceration and in forma pauperis status, awarding court reporter fees/expenses but not awarding attorneys' fees strikes a reasonable and just balance. Accordingly, pursuant to Fed.R.Civ.P. 30(d)(2) and 37(b)(2)(C), it is recommended that Plaintiff be ordered to pay Defendants Melquiades and Gurrola their court reporter fees/expenses for Plaintiff's depositions on June 15, 2022, and October 3, 2022, including transcription costs.
V. CONCLUSION
Because Plaintiff has willfully failed to properly participate in two Court-ordered depositions, it is recommended that this matter be dismissed with prejudice pursuant to Fed.R.Civ.P. 37(b)(2)(A) and 41(b). Further, pursuant to Fed.R.Civ.P. 30(d)(2) and 37(b)(2)(C), it is recommended that Plaintiff be ordered to pay Defendants Melquiades and Gurrola their court reporter fees/expenses for Plaintiff's depositions on June 15, 2022, and October 3, 2022, including transcription costs.
If a lesser, alternative sanction to dismissal is deemed appropriate, it is recommended in addition to Plaintiff being ordered to pay Defendants Melquiades and Gurrola's court reporter fees/expenses that Plaintiff not be able to present any evidence contradicting video and/or audio recordings, including in Plaintiff's response to Defendants' pending motion for summary judgment, and that Plaintiff be precluded from presenting any damages evidence.
Accordingly, IT IS RECOMMENDED that Defendants Melquiades and Gurrola's Motion to Dismiss for Failure to Comply with Court Ordered Deposition (Doc. 92) be granted.
IT IS FURTHER RECOMMENDED that this matter be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that Plaintiff be ordered to pay Defendants Melquiades and Gurrola their court reporter fees/expenses for Plaintiff's depositions on June 15, 2022, and October 3, 2022, including transcription costs. Defendants shall file an application for such within fourteen (14) days of the date this Report and Recommendation is signed.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.