United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. NYE CHIEF U.S. DISTRICT COURT JUDGE
Randall Tetzner has repeatedly failed to respond to Defendant
Coeur d'Alene School District and the District
related-individual defendants' (hereinafter the
“District”) discovery requests, ignored the
Court's orders compelling discovery, and continued to
delay in prosecuting his suit. The Court accordingly enters
the following order of dismissal.
August 27, 2019, and October 23, 2019, the District
repeatedly attempted to obtain discovery responses from
Plaintiff Randall Tetzner. When such attempts were unsuccessful,
the Court ultimately entered an Order Compelling Mr. Tetzner
to respond to the District's Interrogatories and Requests
for Production by November 12, 2019. Dkt. 31. While Mr.
Tetzner failed to produce any discovery, he notified counsel
for the District, on the date his discovery was due, that he
was having an invasive medical procedure. Counsel for the
District requested more information regarding Mr.
Tetzner's health situation and the impact it would have
on his ability to respond to discovery but did not receive
any response. Although Mr. Tetzner did not file a motion with
the Court to seek an extension, nor provide it with notice or
any other information regarding his health condition, the
Court, in an abundance of caution, gave Mr. Tetzner another
extension of time and ordered him to respond to discovery by
November 29, 2019, or face dismissal. Dkt. 32. Mr. Tetzner
did not respond to the District's discovery requests by
November 29, 2019, and has yet to produce the requested
December 2, 2019, Mr. Tetzner notified the District's
counsel by email that he may need surgery and that his
condition was life-threatening. The District's counsel
requested additional information but did not receive a reply.
Nor has the District's counsel received a reply to any of
its emails in the last four months regarding Mr.
Tetzner's obligation to respond to discovery. Despite the
Court's November 1, 2019, and November 18, 2019, orders
compelling him to produce discovery, Mr. Tetzner has never
filed a motion for a protective order, or any other
information regarding his health condition, with the Court.
Rule of Civil Procedure 37 gives courts the power to impose
sanctions against parties who do not comply with discovery
orders. Rule 37(d)(1)(A)(ii) authorizes the court to impose
sanctions against a party who, after being properly served
with interrogatories under Rule 33 or a request for
inspection under Rule 34, fails to serve its answers,
objections, or a written response. A failure to respond to
interrogatories or requests for production is not excused on
the grounds that the discovery sought was objectionable
unless the party failing to act has a pending motion for a
protective order under Rule 26(c). Fed.R.Civ.P. 36(d)(2).
Rule 37(b), a finding of bad faith is not a prerequisite for
imposing sanctions under Rule 37(d). Hyde & Drath v.
Baker, 24 F.3d 1162, 1171 (9th Cir. 1994). Rule 37(d)
also allows for direct sanctions even without a prior court
order compelling discovery and even where a party has not
previously been warned for any rule misconduct. Halaco
Eng'g Co. v. Costle, 843 F.2d 376, 380 n. 1 (9th
Cir. 1988); Sigliano v. Mendoza, 642 F.2d 309, 310
(9th Cir. 1981).
as here, a party has failed to respond to discovery, Rule
37(d) authorizes the court to award any of the sanctions
available under Rule 37(b)(2)(A). Such sanctions include: (i)
directing that facts be taken as established “as the
prevailing party claims”; (ii) prohibiting the
disobedient party from introducing certain evidence or from
supporting or opposing certain claims or defenses; (iii)
wholly or partially striking pleadings; (iv) staying further
proceedings until orders are obeyed; (v) dismissing the
action in whole or in part; (vi) entering a dismissal or
default judgment against the disobedient party; or (vii)
treating failure to obey most kinds of orders as contempt.
Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii). A district court has
“great latitude” in fashioning sanctions pursuant
to Rule 37. Lew v. Kona Hosp., 754 F.2d 1420, 1425
(9th Cir. 1985).
sanctions are warranted, the court must determine the
appropriate level or severity of sanctions based on the
circumstances of the case. A case-dispositive sanction is a
harsh penalty reserved for extreme circumstances.
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986). As a result, the Ninth Circuit has constructed a
five-factor test to determine whether a case-dispositive
sanction is just: (1) the public's interest in the
expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
other party; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions. Rio Properties, Inc. v. Rio Intern.
Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002) (citation
omitted); Thompson v. Hous. Auth. of City of Los
Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (hereinafter
“Thompson Factors”). Provided a court
weighs such factors, the Ninth Circuit has repeatedly upheld
case-terminating sanctions for failure to comply with
pretrial procedures mandated by local rules and court orders.
while due process requires that dismissal may not be imposed
when a failure to respond to discovery is due to
circumstances beyond a party's control, United States
v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365,
1369 (9th Cir. 1980), the Ninth Circuit has specifically
encouraged dismissal when it determines “that counsel
or a party has acted willfully or in bad faith in failing to
comply with the rules of discovery or with court orders
enforcing the rules or in flagrant disregard of those rules
or orders.” G-K Properties v. Redevelopment
Agency, 577 F.2d 645, 647 (9th Cir. 1978) (citing
National Hockey League v. Metropolitan Hockey Club,
Inc., 427 U.S. 639 (1976)). A party's repeated
failure to comply with discovery requests and court orders
manifests the requisite fault to impose the harsh sanction of
dismissal. Sigliano, 642 F.2d at 310.
the Court already assessed the five Thompson Factors
to determine whether case-dispositive sanctions were
warranted, and found three of the five factors weighed in
favor of dismissal. Dkt. 31, at 5-7 (finding the public
policy favoring disposition of cases on their merits and the
availability of less drastic sanctions weighed against
dismissal). Because the Court had not ordered an alternative,
less severe sanction at that time, the Court allowed Mr.
Tetzner an additional ten days to respond to discovery, and
then extended his response deadline another two weeks,
sua sponte, upon Mr. Tetzner's notice to the
District's counsel that he was suffering from health
problems. As noted, Mr. Tetzner has never contacted the Court
regarding his health condition, nor filed a motion to seek an
extension or to request a protective order.
light of Mr. Tetzner's continued failure to respond to
discovery despite two orders compelling him to do so, the
Court finds that four of the five Ninth Circuit factors now
weigh in favor of dismissal. Where, as here, a court order
has been violated, the first and second factors support
case-dispositive sanctions. Adriana Int'l Corp. v.
Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Instead of
considering the merits of this case, the Court must again
address Mr. Tetzner's failure to comply with his
discovery obligations. Mr. Tetzner's conduct thus impedes
the expeditious resolution of this case and the ...