Christine Baker, Plaintiff, v. Midland Funding LLC, et al., Defendants No. CV-13-08169-PHX-SPL United States District Court, D. Arizona Filed May 22, 2020 Counsel Christine Baker, Meadview, AZ, pro se. Martin Schannong, Pro Hac Vice, David J. Kaminski, Pro Hac Vice, Carlson & Messer LLP, Los Angeles, CA, Thomas P. Burke, II, Udall Law Firm LLP, Phoenix, AZ, for Defendants Midland Funding LLC, Midland Credit Management Incorporated. John Gregory Cahill, Michael Joseph Plati, Victoria Lea Buchinger, Dickinson Wright PLLC, Phoenix, AZ, for Defendants Bursey & Associates PC, Barry Bursey, Jason LeRoy, Monica Derrick, Gina Scalese. Logan, Steven P., United States District Judge ORDER *1 Before the Court is a Motion for Sanctions Against Plaintiff for Failure to Comply with Court Order (the “Motion”) filed by Defendants Midland Funding LLC and Midland Credit Management, Inc. (the “Midland Defendants”).[1] (Doc. 258) For the following reasons, the Court will grant the Motion and dismiss this case for failure to prosecute. I. Background[2] Christine Baker (“Plaintiff”) lives in Meadview, AZ. In 2012, the Bursey Defendants filed a lawsuit in Mohave County, AZ on behalf of the Midland Defendants against Plaintiff seeking to collect unpaid credit card balances. (Doc. 195 at 7) The court ultimately dismissed the case due to an expired statute of limitations, concluding that Arizona's three-year statute of limitations for accounts without a written agreement applied instead of the six-year statute of limitations for accounts with a written agreement. (Doc. 195 at 7) In 2013, Plaintiff, acting pro se, filed this lawsuit in Mohave County Superior Court. (Doc. 1) Plaintiff alleges violations of the Federal Debt Collection Practices Act (“FDCPA”) 15 U.S.C. § 1692 and the Fair Credit Reporting Act (“FCRA”) 15 U.S.C. § 1681 due to Defendants pursuing the 2012 lawsuit. (Doc. 195) Defendants removed the case to this Court. (Doc. 1) After allowing Plaintiff the opportunity to amend her complaint twice, the Court set the discovery deadline for September 16, 2019. (Docs. 70, 195, 206) On August 20, 2019, Defendant sent a notice to Plaintiff regarding her deposition scheduled for September 6, 2019 in Phoenix, AZ. (Doc. 216-2 at 5-10) Plaintiff refused to appear that day, so Defendants continued the deposition to September 13, 2019. (Doc. 216-2 at 5-10) On September 12, 2019, the parties filed a joint motion for discovery dispute because Plaintiff again refused to appear for the deposition. (Doc. 216) Plaintiff requested that the Court vacate the deposition because she believed Defendants improperly scheduled the deposition after the discovery deadline and Defendants were only using the deposition to harass her. (Doc. 216 at 2) Plaintiff also argued that Phoenix was an unreasonable deposition location because it was too far away from her home. (Doc. 216-1 at 3-5) Plaintiff asserted that Defendants should travel to Kingman, AZ to take the deposition. In the alternative, Plaintiff agreed to travel to Las Vegas, NV if the Defendants would pay for her travel costs. (Doc. 216-1 at 1-2) In response, Defendants argued that the original deposition was scheduled before the discovery deadline and Plaintiff was unreasonably refusing to appear for the deposition. (Doc. 216 at 2-3) Defendants further argued that Phoenix was the most appropriate place for the deposition because the forum court is located there. (Doc. 216 at 2-4) Defendants explained that various legal counsel would have to travel from out of state to attend the deposition, and there is no commercial airport near Kingman, AZ. (Doc. 216 at 2-4) Defendants also refused to pay for Plaintiff's travel costs. (Doc. 216 at 2-4) After considering the parties’ arguments, the Court ordered that the deposition take place in Phoenix and gave the parties until November 1, 2019 to conduct the deposition. (Doc. 228) *2 Defendants sent Plaintiff a new notice of deposition for October 29, 2019. (Doc. 235 at 1) On October 23, 2019, Plaintiff filed a Motion for an Extension of Time to File A Motion for Protective Order. (Doc. 235) In the motion, Plaintiff asserted that she suffers from early onset Alzheimer's disease, stress, and other severe mental health issues. (Doc. 235 at 2) She also asserted that she did not have the ability to drive safely from her home to Phoenix. (Doc. 235 at 2) The Court granted Plaintiff's request and stayed the deposition so that Plaintiff could file the motion. (Doc. 237) Plaintiff filed the motion for protective order on November 4, 2019. (Doc. 241) The Court denied Plaintiff's motion, finding that Plaintiff offered no medical diagnosis or other evidence to establish that her alleged conditions inhibited her ability to drive or travel. (Doc. 245) The Court explained: In sum, the Court will deny the motion. Plaintiff shall appear for her deposition, but the Court will allow the deposition to take place in Las Vegas, NV. Las Vegas is closer to Plaintiff's home than Phoenix, and there is a commercial airport available for any defense counsel that must travel by airplane. The parties shall bear their own travel costs. In the alternative, the parties may jointly stipulate to take the deposition telephonically or by other remote means pursuant to Federal Rule of Civil Procedure 30(b)(4). If Plaintiff does not appear for her scheduled deposition, Defendants may seek sanctions in accordance with the Federal Rule of Civil Procedure 37. Additionally, if Plaintiff fails to appear for her deposition, the Court may consider dismissing the case with prejudice for lack of prosecution. (Doc. 245 at 4) The Court further ordered that Defendants would have until December 27, 2019 to depose Plaintiff. (Doc. 245 at 4) Plaintiff filed a motion for reconsideration on December 9, 2019. (Doc. 247) Defendants scheduled Plaintiff's deposition for December 19, 2019 in Las Vegas, NV.[3] (Doc. 258-1) Plaintiff failed to appear. (Doc. 258 at 2) On January 3, 2020, Defendants filed the Motion currently before the Court. (Doc. 258) Defendants argue that sanctions are warranted under Federal Rule of Civil Procedure (“Rule”) 37 due to Plaintiff's willful conduct. (Doc. 258 at 2-3) Defendants argue that the Court denied Plaintiff's motion for a protective order and Plaintiff's pending motion for reconsideration did not excuse her non-appearance at the deposition. (Doc. 258 at 3) Defendants assert that dismissal is an appropriate sanction, or in the alternative, Plaintiff should be barred from testifying at trial. (Doc. 258 at 4-8) In response, Plaintiff argues that the Court cannot compel her to attend the deposition because she is not fit to drive. (Doc. 262 at 3) Plaintiff further argues that the Court's “unjust rulings” and “failure to timely rule on her motions” have contributed to her ongoing health problems.[4] (Doc. 262 at 3) Plaintiff further argues that her pending motion for reconsideration did in fact stay the deposition. (Doc. 262 at 8) The Motion is fully briefed and ready for review. (Docs. 258, 262, 263) II. Legal Standard It is not necessary to serve a subpoena on a party to a suit in order to take her deposition because Rule 30 simply requires that she be given “notice.” See Amor v. Arizona, No. CV-06-499-TUC-CKJ, 2010 WL 11629098, at *1 (D. Ariz. Sept. 9, 2010) (citing Collins v. Wayland, 139 F.2d 677, 678 (9th Cir. 1944) (“It is immaterial, if true, that no subpoena was served on appellant, for he was a party, and therefore no subpoena was necessary.”)). Properly serving such “notice” enacts the provisions of Rule 37. *3 Rule 37 allows a district court broad discretion in imposing sanctions for discovery violations, including dismissal. Fed. R. Civ. P. 37(b)(2)(A). Plaintiffs have an overall duty to prosecute their case, and “a plaintiff's failure to participate in discovery may [ ] be deemed a failure to prosecute.” See Briley v. Valley Medtrans Inc., No. CV-16-00941-PHX-ESW, 2018 WL 826548, at *1 (D. Ariz. Feb. 12, 2018) (citing Fidelity Phila. Tr. Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978)). Separately, Rule 41(b) provides that “[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.” A district court must weigh five factors to determine whether dismissal for lack of prosecution is warranted: “(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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.” Calloway v. Hayward, 651 Fed.Appx. 637, 639 (9th Cir. 2016). Dismissal is appropriate “when at least four factors favor dismissal or at least three factors strongly favor dismissal.” Id. III. Discussion A. Factors One and Two: Expeditious Resolution of Litigation and Management of The Court's Docket First, “the public's interest in expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Second, the trial court—not the plaintiff—should control the pace of the docket. See id. This is a six-year-old case, and the parties are still arguing over discovery issues. The Court finds that the delay in this case is unreasonable and has caused a substantial interference with the Court's docket. Plaintiff has repeatedly failed to appear when her appearance was necessary to move this case forward. Plaintiff's non-cooperation regarding making herself available as required for the deposition, without providing substantiating evidence that there are circumstances that make it impossible for her to do so, has severely hindered the Court's ability to move this case to a final disposition. Plaintiff is taking time that could be devoted to other cases on the Court's active docket. Therefore, the Court finds that the first two factors favor dismissal. B. Factor Three: Prejudice to Defendant “In determining whether a defendant has been prejudiced, we examine whether the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.” Malone v. U.S. Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987) (internal citation omitted). In the Second Amended Complaint, Plaintiff alleges that Defendants made false and misleading statements to her and engaged in harassment and abuse in violation of the FCRA and FDCPA. (Doc. 195 at 16-19) Only Plaintiff knows key information necessary to establish the timeline of events and other relevant information at issue in this case. Plaintiff now attempts to impede the resolution of the case by preventing Defendant from gathering such relevant information for trial. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (“Unnecessary delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale.”) (citation omitted). Given Plaintiff's repeated assertion that she suffers from memory lapses, the risk of prejudice to Defendants’ ability to form a defense in this case increases as time passes. The Court finds that the third factor also favors dismissal. C. Factor Four: The Availability of Less Drastic Matters *4 When considering whether to dismiss a case for lack of prosecution, a court should consider the feasibility of alternative sanctions before ultimately dismissing the case. See Estrada v. Speno & Cohen, 244 F.3d 1050, 1057 (9th Cir. 2001). “Warning that failure to obey a court order will result in dismissal can itself meet the consideration of alternatives requirement.” In Re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1229 (9th Cir. 2006) (internal quotations and citation omitted). Plaintiff timely received notice of the December 19, 2019 deposition but did not attend. Plaintiff asserts that she was waiting for the Court to rule on her outstanding motion for reconsideration regarding a protective order. (Doc. 262 at 8) However, this reasoning does not justify her failure to appear at the deposition because “it is for the court, not the deponent or [her] counsel, to relieve [her] of the duty to appear.” Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964); see also Nationstar Mortg., LLC v. Flamingo Trails No. 7 Landscape Maint. Ass'n, 316 F.R.D. 327, 336-38 (D. Nev. 2016) (“The mere filing of a motion for protective order does not relieve a deponent of his duty to appear at a deposition; instead, that duty is relieved only by obtaining either a protective order or an order staying the deposition pending resolution of the motion for protective order.”). The Court expressly warned Plaintiff in its November 25, 2019 Order denying her request for a protective order that the failure to appear at the deposition would allow Defendants to seek sanctions in accordance with Rule 37. (Doc. 245 at 4) The Court further warned that it may also consider dismissing the case with prejudice for lack of prosecution. (Doc. 245 at 4) Plaintiff has been given more than one opportunity to sit for her deposition. Plaintiff now asserts that she will “only consent to a deposition taken at a hospital, with [her] doctor's permission and the doctor present, and the Defendants posting a $20 million bond in case [she has] a stroke, heart attack or other health problems due to the deposition.” (Doc. 262 at 7) However, Plaintiff's medical records do not demonstrate that she has been diagnosed with any risk for a stroke, heart attack or other health problem due to the deposition. (Doc. 262-1) Plaintiff's self-diagnosis is insufficient to relieve her of her obligation to appear at the deposition. See Syed Nazim Ali v. Gilead Sci., Inc., No. 18-cv-00677-LHK (SVK), 2018 WL 3629818, at *1-2 (N.D. Cal. July 31, 2018) (modifying the conditions of the plaintiff's in-person deposition after the plaintiff presented a doctor's note instructing that the deposition should stop if the plaintiff's blood pressure reached a certain level). Under these circumstances, there is no reason to believe that a less drastic measure is available. First, an order for monetary sanctions is not adequate because Plaintiff is proceeding in forma pauperis. (Doc. 36) Furthermore, Defendants’ request to bar Plaintiff's testimony at trial is also inadequate. Plaintiff repeatedly asserts that she cannot drive and is unwilling to travel anywhere for fear of hurting herself or others.[5] The proper venue for this case is the Sandra Day O'Connor United States Courthouse located in Phoenix. Plaintiff has already indicated an unwillingness/inability to travel to Phoenix. Although the Court is sympathetic to Plaintiff's overall health condition, the Court has no reason to believe that less drastic sanctions would cause Plaintiff to diligently prosecute this action, which includes traveling to Phoenix to appear for trial. Even in the face of warnings from the Court, Plaintiff has disregarded the requirements of the pretrial discovery process and has violated the Court's Order managing that process. Therefore, the Court finds that the fourth factor favors dismissal because less drastic measures would be ineffective in gaining further compliance by Plaintiff in this case. D. Factor Five: Judgment on the Merits *5 Generally, the last factor weighs against dismissal. See Calloway, 651 Fed.Appx. at 640. Even so, “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.” PPA Prod. Liab. Litig., 460 F.3d at 1228. In addition, “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. (internal quotations and citation omitted). This factor, therefore, weighs in favor of dismissal. IV. CONCLUSION For the foregoing reasons, the Court finds that dismissal is the appropriate sanction in this case. See Patterson v. Allen, No. 2:16-CV-442-RMP, 2019 WL 1521978, at *6 (E.D. Wash. April 8, 2019) (“[T]his case presents the extreme circumstances that warrant dismissal as the appropriate sanction for Plaintiff's decisions to disregard his obligations as a litigant, as ordered by the Court, and as required by the discovery rules.”). Accordingly, IT IS ORDERED that: 1. Defendants’ Motion for Sanctions (Doc. 258) is granted; 2. This case is dismissed with prejudice; 3. Any pending motions are denied as moot; 4. Judgment shall be entered for Defendants. The Clerk's Office shall terminate this case and enter judgment accordingly. Dated this 22nd day of May, 2020. Footnotes [1] Defendants Bursey & Associates, P.C., Barry Bursey, Jason LeRoy, Monica Derrick, and Gina Scalese (the “Bursey Defendants”) filed a joinder to the Motion. (Doc. 259) [2] This case began in 2013 and has an extensive procedural history. The Court therefore limits the background facts to those relevant to the Motion. [3] Neither the Motion nor the Response indicate whether the parties discussed alternative means to perform the deposition remotely as offered by the Court. [4] Plaintiff makes several disturbing statements in the Response, including that she is planning a public suicide. (Doc. 262 at 11-12) [5] Plaintiff's assertions are inconsistent. In her motion for reconsideration, she stated that she regularly drives another person to the doctor in Kingman, AZ. (Doc. 247 at 14)