*1 This Report and Recommendation is submitted to the Honorable Maame Ewusi-Mensah Frimpong, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

During this litigation, Plaintiff has consistently engaged in discovery-related abuse. The Magistrate Judge has issued multiple orders compelling discovery from Plaintiff, imposing monetary sanctions on Plaintiff and warning Plaintiff that failure to comply with the Magistrate Judge's orders could result in the dismissal of this action. Nevertheless, Plaintiff has violated these orders, failing to pay any part of the monetary sanctions imposed. Most recently, Plaintiff defied the Magistrate Judge's order to appear in court. Under these extraordinary circumstances, a dismissal sanction is appropriate.

In this removed action, Plaintiff alleges credit reporting claims against, inter alia, Defendant Trans Union, LLC (“Trans Union”) (see “First Amended Complaint, etc.,” filed April 11, 2023). On October 10, 2023, Trans Union served on Plaintiff interrogatories, requests for production and requests for admission (“Declaration of Kyle Pietrzak, etc.” filed January 18, 2024). Plaintiff failed to serve any timely response to any of these discovery requests. Id. Plaintiff then failed to cooperate in Local Rule 37 procedures, thereby forcing Trans Union to file a unilateral motion to compel. Id. Plaintiff failed to file any timely opposition to this motion (see Minute Order, filed January 29, 2024). The Magistrate Judge granted the motion to compel in part, denying monetary sanctions only because Trans Union had failed to submit any evidence attempting to prove the amount or the reasonableness of the sanctions. Id.

At a February 15, 2024 deposition conducted by Trans Union, Plaintiff refused to answer basic background questions and then improperly terminated the deposition (“Declaration of Kyle Pietrzak, etc.,” filed February 27, 2024). Plaintiff again failed to cooperate in Local Rule 37 procedures, forcing Trans Union to file another discovery motion unilaterally. Id.

The Magistrate Judge granted this discovery motion in substantial part by Minute Order, filed March 29, 2024. This Order required that Plaintiff pay to Trans Union sanctions in the amount of $2,375.00 no later than April 28, 2024. Although denying Trans Union's request for terminating sanctions, the Magistrate Judge expressly cautioned Plaintiff that “[f]ailure to comply fully and timely with this Order may result in the imposition of more drastic sanctions, including, without limitation, the dismissal of this action” (Minute Order, filed March 29, 2024).

Nevertheless, Plaintiff failed timely to pay any part of the monetary sanctions required by the March 29 Order (“Declaration of Kyle Pietrzak, etc.,” filed May 29, 2024). Plaintiff accompanied his failure to pay with misrepresentation. Through his counsel, Plaintiff falsely represented to Trans Union on May 7, 2024, that “the check was sent out yesterday.” Id.

*2 On May 29, 2024, Trans Union filed a “Motion for Additional Sanctions,” requesting additional monetary sanctions as well as terminating sanctions. By Minute Order, filed July 1, 2024, the Magistrate Judge ordered, in pertinent part:

Despite this Order, neither Plaintiff nor Plaintiff's counsel appeared at the July 12, 2024 hearing before the Magistrate Judge. Counsel for Trans Union represented at the hearing that Trans Union still had not received from Plaintiff any part of the sanctions ordered on March 29, 2024, or any part of the sanctions ordered on July 1, 2024.

Plaintiff has engaged in willful, repeated, bad faith discovery abuse. The abuse has included repeated violations of multiple orders, despite pointed warnings and monetary sanctions. Rule 37(b)(2) of the Federal Rules of Civil Procedure authorizes the sanction of dismissal against parties who disobey a court's discovery orders. See National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981). To justify the imposition of case-dispositive sanctions, the Court must find that the discovery violations were due to “willfulness, bad faith, or fault of the party.” Commodity Futures Trading Commission v. Noble Metals International, Inc., 67 F.3d 766, 770-71 (9th Cir. 1995), cert. denied, 519 U.S. 815 (1996) (citations and internal quotations omitted); see also Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958). Disobedient conduct not outside the control of the litigant is all that is required to demonstrate willfulness, bad faith or fault. Henry v. Gill Industries, Inc., 983 F.2d 943, 948-49 (9th Cir. 1993) (citation and internal quotations omitted). In evaluating the propriety of sanctions, the Court considers “all incidents of a party's misconduct.” Adriana International Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir. 1990), cert. denied, 498 U.S. 1109 (1991) (citation omitted). It has long been established that a trial court properly may impose terminating sanctions “to protect the integrity of its orders.” Fendler v. Westgate-California Corp., 527 F.2d 1168, 1170 (9th Cir. 1975).

*3 To the extent Plaintiff might claim that his discovery abuse resulted from the acts, omissions or advice of his counsel, such claim is both unsupported on this record and immaterial as a matter of law. A party generally must bear the consequences of discovery abuses caused by the party's counsel. See, e.g., Hamilton Cooper and Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1431 n.2 (9th Cir. 1990); West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990); Chisum v. National Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir. 1981).

The Ninth Circuit has identified five factors that a court must consider when asked to impose the sanction of dismissal: (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 party seeking dismissal; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1385 (9th Cir. 1988). “These factors are not a series of conditions precedent before the judge can do anything, but a way for a district judge to think about what to do.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation and internal quotations omitted). Consideration of these factors yields the conclusion that the Court should impose the ultimate sanction of dismissing Plaintiff's claims against Trans Union.

Factors 1 and 2 obviously militate in favor of granting dismissal. Factor 2 weighs particularly heavily because of the congested dockets in the Central District of California. See Hunt v. Sunny Delight Beverages Co., 2019 WL 1873230, at *4 (C.D. Cal. April 9, 2019); Alfaro v. Real Value Properties LLC, 2019 WL 2158902, at *2 (C.D. Cal. Jan. 24, 2019).

As to Factor 3, prejudice to Trans Union (beyond a financial prejudice and a diversion of resources) does not appear profound. Yet, Plaintiff's pattern of abuse threatens future prejudice because Plaintiff has proven himself unwilling or unable to comply with the Federal Rules of Civil Procedure, the Local Rules of this Court, and the orders of this Court.

As always, Factor 4, the public policy favoring disposition of cases on the merits, weighs against terminating sanctions. However, “a case that is stalled or unreasonably delayed by a party's failure to comply with deadlines and discovery obligations cannot move forward toward resolution on the merits.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d at 1228.

With respect to Factor 5, the Magistrate Judge twice previously imposed less drastic sanctions for Plaintiff's discovery-related abuses, without any apparent effect. The Magistrate Judge ordered discovery compliance, imposed monetary sanctions, and warned of a terminating sanction upon further noncompliance. Nevertheless, noncompliance continued and culminated in defiance, which strongly suggests the futility of sanctions less drastic than a terminating sanction.

For all of the foregoing reasons, it is recommended that the Court issue an order dismissing with prejudice all of Plaintiff's claims against Trans Union.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

*4 Pursuant to 28 U.S.C. section 636, the Court has reviewed the Complaint, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that all of Plaintiff's claims against Trans Union, LLC are dismissed with prejudice.