Free Motion for Sanctions - District Court of Arizona - Arizona

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Ernest Calderón (#007677) Faith C. Klepper (#018444) CALDERÓN LAW OFFICES 2020 N. Central Ave., Suite 1100 Phoenix, AZ 85004 (602) 265-0004

Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA JOYCE A. CORRALES, Plaintiff, vs. CHASE BANKCARD SERVICES, INC., a Delaware corporation, d/b/a Chase Manhattan Bank, N.A., Defendant. DEFENDANT'S MOTION FOR SANCTIONS FOR FAILURE TO COMPLY WITH DISCOVERY ORDER (Honorable Susan R. Bolton) No. CIV 02-2157-PHX-SRB

Pursuant to Federal Rule of Civil Procedure 37(C) and 41(b) and Local Rule of Civil Procedure 83.1, Defendant Chase BankCard Services, Inc. ("Chase"), by and through undersigned counsel, hereby moves this Court for its Order precluding Plaintiff Joyce A. Corrales ("Corrales") from introducing at trial any evidence relating to her alleged damages and any other sanctions as are warranted on the grounds that Corrales failed to disclose these matters in a timely fashion as required by the Federal Rules of Civil Procedure and the Order of this

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Court. This motion is supported by the accompanying Memorandum of Points and Authorities
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which are incorporated herein by this reference. RESPECTFULLY SUBMITTED this 23rd day of June, 2006. CALDERÓN LAW OFFICES ___s/Faith C. Klepper__________________ Ernest Calderón Faith C. Klepper
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MEMORANDUM OF POINTS AND AUTHORITIES I. Factual Background On July 7, 2005, the parties filed a proposed case management system in which each

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party submitted proposed deadlines for the completion of discovery, dispositive motions and trial. Corrales' proposed dates were substantially longer than Chase's proposed dates. At the Rule 16 scheduling conference on July 11, 2005, this Court opted to grant Corrales' request for additional time for discovery over Chase's objection. At the hearing, this Court ordered all discovery to be completed by March 31, 2006 and ordered that the parties could not file more than one dispositive motion any later than May 1, 2006. On October 14, 2005 at Joyce Corrales' deposition, Defendant requested discovery

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relating to proof of alleged damages.
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(See Exhibit 1.)

Corrales agreed to disclose that

information. However, no such discovery was forthcoming, even after Chase again requested the discovery in a letter to Corrales' attorney on March 29, 2006. (See Exhibit 2.) The March 29 letter set forth four specific requests for information previously promised by Corrales and gave her until April 7, 2006 to provide the requested discovery even though five months had passed since Chase first made the requests for discovery on her alleged damages and despite the fact that this Court ordered that all discovery, including the production of documents, must be completed by March 31, 2006.

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Corrales' attorney responded to Chase's letter for the first time on April 6 with a phone call in which he left a message with defense counsel's receptionist stating that Corrales would provide the information on or about April 12. (See Exhibit 3.) However, no documents or information were ever provided to defense counsel before or after April 12. Moreover, Corrales has never received any explanation why the requested discovery was not forthcoming.
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Without any disclosure on the issue of Corrales' alleged damages, Chase filed its Motion for Summary Judgment on May 1. In that Motion, Chase argued, inter alia, that a summary judgment verdict must be entered against Corrales because she has provided no proof of damages. Defense counsel noted in the Motion the fact that Corrales failed to respond to

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multiple requests for production of discovery related to the issue of her alleged damages. Nearly one month later, undersigned counsel received a letter from Corrales' attorney requesting additional time to respond to the Motion for Summary Judgment and stating as an aside that he just realized Corrales owed Chase a response to several discovery requests. (See Exhibit 4.) Later that day, Corrales' counsel faxed a supplemental notice of discovery. (See Exhibit 5.) The notice providing the name and phone number of only one of the alleged employers Corrales had after quitting her job with Chase and stated that some of the information

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Chase requested last October will not be provided for several more weeks. Once again, there
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was no explanation for the protracted delay in providing even this partial disclosure. II. Corrales' actions violated an explicit Order of this Court warranting dismissal under Rule 41. Rule 41(b) of the Federal Rules of Civil Procedure permits a defendant to move for

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dismissal of an action against it "for failure of the plaintiff to prosecute or to comply with these rules or any order of court." This Court previously warned Corrales that such sanction could be imposed if she failed to follow the Court's orders. Although she has ignored this Court's Orders in the past, she has so far avoided sanction under this rule. (See Defendant's Motion to Dismiss Complaint for Failure to Comply with Rule 41.) At the Rule 16 scheduling conference in July 2005, Corrales requested a much lengthier time for completion of discovery. The Court granted that request over Chase's objection.

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However, despite this Court's agreement to the substantially longer time frame proposed by Corrales, she nonetheless failed to follow the Order of this Court regarding the deadlines for completion of discovery. Nearly eight months have passed since Chase requested the discovery on alleged

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damages.

Two months have passed since the Court-ordered discovery deadline.

Corrales

doesn't even bother to explain why any of this information could not have been produced anytime before the Court-ordered deadline. Moreover, Corrales waited until a month after Chase filed its only permitted dispositive motion to acknowledge the request. There is simply no excuse for this unconscionable delay. This Court has warned Corrales on more than one occasion that the "failure to strictly adhere to the provisions of this or any other Court Order will result in dismissal of the Plaintiff's

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Complaint pursuant to Rule 41." (Order, April 7, 2003, at 2.) (Emphasis removed.) Chase has
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previously sought sanction for her dilatory tactics, but the Court denied that motion. However, the argument for imposing the ultimate sanction has become even stronger now that she has again violated an order of the court and prejudiced the defense. As stated in the previous motion for sanctions, the Ninth Circuit Court of Appeals permits the trial court to dismiss a complaint for a party's failure to comply with any order of the court. Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), cert denied 506 U.S. 915 (1992). In Ferdik, the Court of Appeals set forth a five part test for determining whether

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dismissal is an appropriate sanction for a plaintiff's failure to comply with the court's orders.
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The court must consider "(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

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favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives." Id. at 1261. In Chase's prior request for sanctions pursuant to Rule 41, Chase pointed out that the first two elements were present in the long amount of time this case has been pending. Since then,

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nearly a year has passed since Corrales was given a second chance at following this Court's orders. However, there has been no improvement in Corrales' conduct if this case. In fact, it has deteriorated. As noted in Defendant's Motion to Clarify, Corrales' attorney failed to file a notice of appearance with this Court even though he claimed he did so in October 2005. Now, Corrales blatantly ignores this Court's order regarding the completion of discovery. Unlike previous orders Corrales has flouted, this one has undoubtedly prejudiced the defense and, given the lack of any explanation why discovery was not timely made, this Court can imply

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Corrales' intent to prejudice the defense.
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At the Rule 16 scheduling conference, this Court made clear that no more than one dispositive motion on the merits of the case could be filed. Corrales waited a month after Chase filed its dispositive motion noting the lack of disclosure on the issue of damages to begin disclosing the information requested eight months ago. By doing so, Corrales prevented Chase from presenting the Court with a comprehensive summary judgment motion and restricts Chase's ability to respond to whatever discovery she will inevitably attempt to present for the first time in her response to the summary judgment motion. At this stage of the proceedings, with the trial

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date just two months away, Chase has no time to investigate or rebut the information that
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Corrales has finally disclosed and alleges she will disclose at some unknown time in the future. The Ferdik test requires the Court to consider, but not necessarily choose, less drastic alternative sanctions. In this case, however, less drastic alternatives are no real alternatives in
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this case. Corrales will likely argue that the remedy for her violation is to extend the discovery deadlines and/or trial date to which she agreed at the scheduling conference. However, such an option would only serve her interest in prolonging this litigation and would not address the problem of the prejudice suffered by her failure to disclose the alleged evidence prior to the

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filing of the motion for summary judgment.

Thus, this Court should impose the ultimate

sanction of dismissal for her blatant disregard of a valid discovery request and for repeatedly ignoring orders of this Court. III. Corrales' actions require the imposition of harsh sanctions as provided in Rule 37. Rule 37(c)(1) provides that a party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as

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required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at
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a trial, at a hearing, or on a motion any witness or information not so disclosed. Under Rule 37(d) sanctions are mandatory for failure to respond to a request for production of documents unless the court finds the failure was "substantially justified." This means that the party being sanctioned must show that there is a `genuine dispute' as to the reason for the failure or that reasonable people could differ as to the appropriateness of the actions. Lee v. Walters, 172 F.R.D. 421, 425 (D. Or. 1997). Moreover, it should be noted that belated compliance with discovery requests do not cure the effects of such misconduct so as to preclude

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the imposition of sanctions under the rule. Id. at 428.
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If this Court does not find that a dismissal is warranted pursuant to Rule 41(b), the Court should certainly impose the harshest sanctions possible under Rule 37(c)(1) as all the elements necessary to impose sanctions under that provision have been met in this instance. As stated

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above, Corrales has never provided any explanation why she could not disclose the requested information at any time since it was first requested over eight months ago. Even now, Corrales states that she needs additional time to obtain evidence that she should have acquired even before Chase explicitly requested it. It is, after all, axiomatic that a

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plaintiff will need to provide proof of the damages she alleges in her Complaint. In this light, her failure to even address this request until she requested an extension of time to respond to the summary judgment motion is perplexing at the least. Presumably, however, the information Corrales seeks will be obtained before she files her response. Nevertheless, there can be no legitimate excuse for Corrales' failure to engage in the discovery process. Accordingly, because Corrales failed to provide any justification for her failure to disclose and/or supplement prior disclosures, she has not met the standard of showing substantial

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justification for that failure and this Court must prohibit the use of any evidence undisclosed
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prior to May 1, 2006 (the date the Motion for Summary Judgment was filed) as evidence at a trial, at a hearing, or in a motion or response thereto. Moreover, Rule 37 provides that the offending party may be liable for the payment of reasonable expenses, including attorneys' fees, caused by her failure to disclose. In addition to the other sanctions imposed by this Court for Corrales' failure to provide discovery, Chase requests this Court require Corrales to pay reasonable expenses, including attorney's fees, caused by her actions.

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IV.
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This Court may also impose sanctions for Corrales' failure to comply with the discovery request under the local rules. Even if the Court does not find that sanctions are appropriate under Rule 37(d) or 41,

sanctions may still be imposed pursuant to the Court's inherent authority as outlined in the Local Rules of Civil Procedure. L.R.Civ. 83.1(a)(1) permits the court to impose appropriate sanctions
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upon a party who, without just cause, fails to conform to the Federal Rules of Civil Procedure. The court may make an order imposing fines and costs, including attorney's fees. The court may also refuse to "allow the failing party to support or oppose designated claims or defenses or prohibit the party from introducing designated matters or facts in evidence." L.R.Civ.

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83.1(2)(d). The circumstances of this case, especially the length of time with which the Corrales was given to comply with the discovery request, the prejudice suffered by Chase who was forced to file its dispositive motion without receiving all discovery and Corrales' continued noncompliance with the request, provide just cause for this Court to impose sanctions under the local rules. Moreover, this Court is empowered to impose attorneys' fees and costs should it find that Corrales' eight month (and counting) violation of the request for discovery was "willful." Chase

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respectfully suggests that Corrales' ignoring of repeated requests for the information is evidence
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of willful misconduct justifying the imposition of the imposition of attorneys' fees and costs for this violation. V. Conclusion Corrales is once again in violation of an explicit Order of this Court without any justifiable excuse. The failure to disclose discovery requested by Chase for eight months is inexcusable and has prejudiced the defense. Because Chase has already filed its Motion for Summary Judgment and the firm trial date set in this matter is now less than two months away, an order compelling disclosure of the information and/or an extension of time to complete

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discovery and continue the trial date are insufficient remedies for Corrales' blatant discovery
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violation. Therefore, this Court should dismiss this matter with prejudice or, at a minimum, preclude the use of such evidence at trial, at any hearing, and on any motion or response thereto.
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Chase further requests that this Court order Corrales to pay all of Chase's reasonable expenses and attorneys' fees incurred in the attempts to obtain the discovery and redress for the violation. RESPECTFULLY SUBMITTED this 23rd day of June, 2006. CALDERÓN LAW OFFICES

______s/Faith C. Klepper__________ Ernest Calderón Faith C. Klepper Attorneys for Defendant Chase BankCard Services, Inc.

ORIGINAL of the foregoing electronically filed this 23rd day of June, 2006, with: Clerk of the Court United States District Court District of Arizona COPY of the foregoing hand-delivered this 23rd day of June, 2006, to: The Honorable Susan R. Bolton United States District Court COPY of the foregoing mailed and faxed this 23rd day of June, 2006, to: Mark Brinton 1745 South Alma School Road, Suite 100 Mesa, Arizona 85210-3010 Attorney for Plaintiff

s/Faith C. Klepper

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