*1 The Court submits this Report and Recommendation to the Honorable Andre Birotte, Jr., United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

On September 7, 2021, Plaintiff Washoutpan.com, LLC (“WP”) and Defendant White Cap, L.P. (formerly known as HD Supply) filed a joint stipulation re White Cap's motion for terminating sanctions. (Dkt. 109.) The same day, White Cap and WP filed a joint stipulation re White Cap's motion for evidentiary sanctions due to WP's complete failure to respond to two sets of written discovery. (Dkt. 110.) On September 13, 2021 the District Court issued an Order accepting the Magistrate Judge's Report and Recommendation regarding various evidentiary sanctions arising out of WP's prior failures to participate in discovery and follow prior Court orders. (Dkt. 111.) On September 14, 2021, White Cap filed supplemental memorandums evidencing that WP had not paid additional attorneys' fees sanctions due to White Cap. This is evidence of further instances in which WP has not observed this Court's orders. WP's response has contended that it has been in the process of reviewing its own documents and needs more time to participate fully in discovery. (Dkt. 109, 110.) However, WP does not evidence its diligence or any justifications for completely missing various deadlines, does not justify its non-payment of Court-ordered fees, and does not make any showing of progress made, the amount of additional time sought, or that it would make any difference. These contentions ring hollow. It is clear that WP has not observed and will not observe its obligations as a litigant, much less here where the Plaintiff bears the burden. Terminating sanctions are appropriate. It is recommended that White Cap's motion be GRANTED IN FULL.

Due to WP's routine refusal to satisfy its discovery obligations and observe this Court's orders, the Court issues the following report and recommendation regarding the imposition of terminating sanctions. See Starbuzz Tobacco, Inc. v. Gold Star Tobacco Inc., No. SACV 19-00408-JVS (DFMx), 2020 WL 1162702, at *6 (C.D. Cal. Jan. 7, 2020), (Magistrate Judge's recommendation that motion for terminating sanctions be granted).

WP filed this action in early 2019 (Dkt. 1), and the crux of the remaining claims are trademark and trade dress infringement, as well as passing off and false advertising. (Dkt. 34, Second Amended Complaint.) WP's former counsel withdrew in December 2020. (Dkt. 57.) The District Court stayed the case and required WP to obtain counsel. (Dkt. 59.) When WP failed to do so, White Cap moved to dismiss for failure to prosecute. (Dkt. 61.) The Court granted WP yet further opportunities to obtain new counsel by repeatedly continuing the hearing on White Cap's motion to dismiss. (Dkt. 65, 75, 82.) Ultimately, WP obtained new counsel. (Dkt. 74, 77.)

During the April 30, 2021 hearing on White Cap's motion to dismiss, the Honorable Andre Birotte, Jr., had a candid discussion with WP's new counsel to confirm that WP desired to pursue this case and that W P's new counsel was prepared to do so. (Dkt. 84, 5-6.) [“I just want to make sure, at least the Court's expectation is, that you signed on to this with eyes wide open and you are in it for the long haul. All right, Sir?; MR. FLORES: One hundred percent, Your Honor.”]) Based on WP's assurances, the District Court denied White Cap's motion to dismiss for failure to prosecute. (Id. at 13 [“I'm not going to dismiss this case for failure to prosecute because Mr. Flores is here and he has represented that he has been retained.”].)

*2 Since the entrance of new counsel, White Cap spent substantial time and money in its attempt to receive discovery responses to which it is entitled. The common pattern behind these hurdles is WP's failure to respond to discovery and to Court orders, specifically:

After the parties agreed on a scheduling order, White Cap served on WP a joint stipulation for Requests for Production and Interrogatories. In its portion of the joint stipulation, WP took the position that the discovery disputes would be mooted by its further production on June 7. (Dkt. 86.) However, WP did not make any production by its self-imposed extension of June 7. The Court granted White Cap's motion to compel and ordered production of further responses and documents. (Dkt. 94.) The Court also ordered WP to pay $23,118.50 by August 20, 2021. WP served some responses and a document production of 515 pages. Most of the responses were evasive, incoherent, and/or totally non-responsive. The documents for the most part were a jumble of copy and pasted screenshots onto WP's letterhead. This led to White Cap serving on WP another stipulation, this time seeking evidentiary sanctions due to White Cap's failure to provide sufficient responses per the Court's order on the motion to compel. WP did not respond to this joint stipulation, so White Cap filed a motion. (Dkt. 96.) White Cap did not oppose the motion. White Cap then did not respond to the Court's OSC on the motion, so the Court ordered WP to pay $7,275 by September 1, 2021 (Dkt. 105), and issued a Report and Recommendation as to evidentiary sanctions. (Dkt. 108.)

To make matters worse, WP has not paid any portion of the $23,118.50 in monetary sanctions ordered to be paid by August 20, 2021. (Dkt. 102.) White Cap's counsel reminded WP's counsel of this payment on August 19, 2021, and again on August 27, 2021. (Dkt. 109-3, ¶¶ 12-14.) No payment has been made. (Id.)

Further, the above is not the only example of discovery neglect by WP, and WP has since completely disregarded written discovery and provided no responses at all.

On July 8, 2021, White Cap served on WP Interrogatories, Set 2. (Dkt. 109-4.) Any responses were due by August 9, 2021. WP did not provide any responses or even acknowledge these interrogatories. (Dkt. 109-3, ¶ 4.) On August 10, 2021, White Cap's counsel sent WP's counsel a meet and confer letter regarding this lack of responses and explained that White Cap was entitled to move for sanctions pursuant to Federal Rule of Civil Procedure 37. (Dkt. 109-5.) WP did not respond to this letter and did not contact White Cap's counsel regarding the request to meet and confer. (Dkt. 109-3, ¶ 6.) In a call on August 27, 2021, WP's counsel stated he did not recall receiving this letter and was unaware that WP had failed to respond to Interrogatories, Set 2. (Id. ¶ 7.)

On July 20, 2021, White Cap served on WP Requests for Admission, Set 3. (Dkt. 109-6.) Any response was due by August 19, 2021. No responses were served, so White Cap sent WP a meet and confer letter on August 23, 2021. (Dkt. 109-3, ¶ 10; Dkt. 109-7.) Counsel met and conferred, and in the meet and confer telephone call, WP's counsel has stated that there responses “fell through the cracks.” (Dkt. 109-3, ¶ 11.)

Finally, White Cap has faced further issues in attempting to depose WP's employees and witnesses. WP listed various individuals on its initial disclosures; as relevant here, they are: Juliana Shaw, Haylee Frederick, Ben Harloe, Marc Zarbis, and Leslie Brunsen. For each of these individuals, WP did not provide contact information. Instead, it stated that each person could be contacted through WP's counsel. Therefore, White Cap sent WP's counsel notices of deposition and subpoenas for each of these five people. (Dkt. 109-3, ¶¶ 15-16.)

*3 The depositions of Ms. Frederick and Mr. Harloe took place as scheduled, as did the Rule 30(b)(6) depositions of WP. However, the other three deponents were not as simple and resulted in delays and no-shows. On August 16, the day before Ms. Shaw's scheduled deposition, at 6:02 p.m., WP's counsel sent an email saying that Ms. Shaw was unable to attend “but can reschedule if you provide her a few options.” Scheduled depositions must be cancelled by 5:00 p.m. the day before a deposition or else the party is charged for the court reporter and videographer. Therefore, by the time WP's counsel emailed this information, it was too late to cancel Ms. Shaw's scheduled deposition, and White Cap was forced to take a notice of non-appearance for Ms. Shaw (and pay the costs of that non-appearance). (Dkt. 109-3, ¶ 18.) Nor did WP provide an alternate day before the close of discovery on which Ms. Shaw would be available. (Id. ¶ 19.) In that same August 16 email, WP's counsel stated that Mr. Zarbis and Ms. Brunsen would be deposed as planned. (Id. ¶ 20.) However, on the date of his scheduled deposition, Mr. Zarbis appeared via Zoom while driving his car and stated that he had been told by Mr. Mowers to jump on the call for a few minutes to answer a few questions. (Id. ¶ 21.) Mr. Zarbis was unable to attend a deposition as scheduled, even for a few hours. Therefore, his deposition had to be rescheduled for the next day. White Cap has incurred vendor fees for both days of Mr. Zarbis' depositions. (Id.) Finally, Ms. Brunsen did not appear for her deposition at all. (Id. ¶ 22.) White Cap has not been provided alternative dates for the depositions of Ms. Shaw or Ms. Brunsen. (Id.) Thus, White Cap has incurred considerable expense both in terms of time resulting from attorney preparation and in vendor fees incurred regarding these depositions.

In its supplemental memorandum regarding terminating sanctions, White Cap informed the Court that WP has failed to pay the additional $7,275 in attorneys' fees owed to White Cap which was due on September 1, 2021, pursuant to the Court's order at Dkt. 105. (Dkt. 112.)

District Courts have the inherent power to control their dockets and “[i]n the exercise of that power they may impose sanctions including, where appropriate ... dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). Terminating sanctions may be warranted where “discovery violations threaten to interfere with the rightful decision of the case.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007). The Ninth Circuit permits imposition of such terminating sanctions after the district court has weighed: “(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.” Thompson, 782 F.2d at 831.

Here, all factors weigh in favor of terminating sanctions. First, “the first two of these factors, expeditious resolution of litigation and the district court's need to manage its docket, favor the imposition of sanctions in most cases ...” Clear Channel Entm't/Televisa Music Corp. v. Mexico Musical, Inc., 252 F. App'x 779, 780 (9th Cir. 2007); Avery v. Cash, No. EDCV 12-2136-VBF (MAN), 2013 WL 2250990, at *2 (C.D. Cal. May 21, 2013) (“Plaintiff's delay necessarily implicates both the public interest in the expeditious resolution of litigation and the court's need to efficiently manage its docket, the first and second factors.”). This is especially true here where WP's counsel promised that the case could and would continue when he came onto the case. (See Dkt. 84 (transcript of April 30, 2021 hearing).) As noted above, this was stayed for many months while WP obtained new counsel, and then WP's counsel informed the Court that he came into this case “eyes wide open” and that he was ready to proceed with discovery. Clearly, that was not accurate, as multiple discovery obligations have passed by without WP taking any action. Had WP's counsel not made such a representation, it is likely the District Court would have dismissed the case many months ago, since the record indicates that this case was allowed to proceed solely because of WP's new counsel and its promise regarding preparedness. However, despite its promise, WP is not responding to discovery and court orders.

Despite White Cap's efforts to move the case along, the evidence shows that WP's behavior is making that impossible. The public and court's interest in resolution of this matter have been harmed by WP's failure to engage in necessary and required discovery. Bump Babies Inc. v. Baby The Bump, Inc., No. CV 09-06747-GHK (SSx), 2011 WL 5037070, at *6 (C.D. Cal. Sept. 7, 2011), report and recom mendation adopted sub nom. 2011 WL 5036919 (C.D. Cal. Oct. 20, 2011) (finding terminating sanctions appropriate and finding: “This case has lingered needlessly on the court's docket ... while plaintiffs have struggled to obtain the basic discovery they need, and the delay is due to defendant's willful disregard of both her obligations and of this court's orders.”).

*4 Under the third factor, White Cap has been prejudiced by WP's neglect of this case because White Cap has been forced to expend time and money to attempt to resolve the issues and receive the discovery to which it is entitled, but it has yet to receive that discovery. “Failing to produce documents as ordered is considered sufficient prejudice” under the third factor as a matter of law. Sanchez v. Rodriguez, 298 F.R.D. 460, 465 (C.D. Cal. 2014) (citing In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006)). This is despite a court order compelling that discovery. “[T]he simple fact that [a party] has consistently failed to obey court orders compelling her to cooperate and to produce documents as ordered is, by itself, ample ground to find prejudice.” Bump Babies Inc., 2011 WL 5037070, at *7. White Cap has also been prejudiced in its ability to depose certain individuals listed in WP's initial disclosures. As WP has not provided the contact information of these individuals and has not attempted to reschedule the depositions, White Cap has been left holding the bag to pay for its counsel to prepare for, and its vendor to facilitate various non-appearances and rescheduling. This shows further prejudice.

Not only is WP failing to produce documents and responses as ordered by the Court and failing to respond to discovery completely, it is also failing to pay court-ordered fines, which in fact have been ordered to mitigate the prejudice to White Cap in incurring attorneys' fees having to file motions to compel. This shows the fifth factor weighs in favor of terminating sanctions. There is no reason to believe that further monetary sanctions, as opposed to more severe sanctions of termination of this case entirely, would be effective. Moreover, the Court has warned WP that “failure to comply with this Order will bring into consideration the full panoply of sanctions available under Fed. R. Civ. P. Rule 37(b)(2)(A)(i)-(vii).” (Dkt. 94.) To satisfy the fifth factor, a court should consider lesser sanctions, order them, and give adequate warning of impeding termination. Conn. Gen. Life Ins. Co, 482 F.3d at 1096. This Court has done so. Thus, under the fifth factor, there are no “less drastic” sanctions available that would be appropriate here.

Even the fourth factor weighs in favor of sanctions. While the public policy favoring disposition on the merits normally would weigh against the imposition of sanctions, “the public policy favoring disposition of cases on their merits is not furthered by litigants, like our plaintiff, who refuses to provide discovery needed for preparation of a defense against his claims.” Sanchez, 298 F.R.D. at 465.

While terminating sanctions are only considered justified when failure to produce stems from the “willfulness, bad faith, or fault” of the offending party, Conn. Gen. Life Ins. Co., 482 F.3d 1091, 1096, that is the case here. W P's pattern, as detailed above, is willful and in bad faith, and it has presented no legitimate justification for its failure to abide by Court orders and discovery obligations. Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir. 2004) (finding willfulness where defendant “engaged in a consistent, intentional, and prejudicial practice of obstructing discovery by not complying with repeated court orders and not heeding multiple court warnings”). Nor is there any evidence that the disobedient conduct is outside of WP's control. Constr. Laborers Tr. Funds for S. California Admin. Co. v. Montalvo, No. CV 10-01193-DMG (SSx), 2011 WL 1195892, at *3 (C.D. Cal. Mar. 3, 2011) (“The willfulness standard is met by disobedient conduct not shown to be outside the offending party's control.”).

While terminating sanctions are no doubt severe, here, they are warranted. The most critical factor to be considered in case-dispositive sanctions is whether “a party's discovery violations make it impossible for a court to be confident that the parties will ever have access to the true facts.” Connecticut Gen. Life Ins. Co., 482 F.3d at 1097 (citation omitted). WP initiated this case, but then has repeatedly and regularly failed to comply with its obligations. WP's pattern of ignoring discovery and ignoring Court orders makes it impossible for White Cap to proceed with this case. White Cap has no further options, and thus is entitled to terminating sanctions.

*5 IT IS, THEREFORE, RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation; (2) issuing an order of terminating sanctions against WP; and (3) directing the clerk to enter judgment in favor of White Cap on all claims, and a monetary award inclusive of all sums previously owed by WP through the Court's prior orders, amounting to a total of $30,393.50.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, the records on file, and the Report and Recommendation of the United States Magistrate Judge. The Court accepts the findings and recommendations of the Magistrate Judge.

Accordingly, IT IS HEREBY ORDERED that Defendant White Cap, L.P.'s Motion For Terminating Sanctions is GRANTED IN FULL, and the Clerk is directed to enter judgment in favor of White Cap on all claims, and a monetary award inclusive of all sums previously owed by Washoutpan.com. LLC through the Court's prior orders, amounting to a total of $30,393.50.

DATED: _____

ANDRE BIROTTE, JR. UNITED STATES DISTRICT JUDGE