1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

10 THERESA I. BUCCOLA, Case No. 22-cv-03877-NC 11 Plaintiff,

ORDER GRANTING MOTION TO

12 v. DISMISS PURSUANT TO FEDERAL

RULES OF CIVIL PROCEDURE 37

13 JOSEPH L. BOUCHER, et al., AND 41 14 Defendants. Re: ECF 263, 271, 272 15 16 The City of Carmel-by-the-Sea and five individual Defendants move to dismiss this 17 action based on Plaintiff Theresa Buccola’s failure to comply with the Court’s discovery 18 order at ECF 255. For the reasons below, the Court GRANTS the motion and dismisses 19 this action as to all Carmel Defendants with prejudice pursuant to Federal Rules of Civil 20 Procedure 37(b) and 41(b). 21 I. BACKGROUND 22 A. Factual Background1 23 Plaintiff initiated this action against the Carmel Defendants and Monterey County 24 for alleged violations of her constitutional rights stemming from her July 2020 arrest for 25 entering Carmel Beach while it was closed in the early months of the COVID-19 26 pandemic. Following an announcement of the closure of Carmel Beach for Independence 27 1 Day weekend in 2020, Plaintiff called the Carmel Police Department to question the beach 2 closure and was warned she would be arrested if she entered the beach. TAC ¶¶ 19–20. 3 Plaintiff alleges the beach closure violated her “God-given right to access the navigable 4 waters of the Coast of California.” TAC ¶¶ 74–75. Plaintiff entered, then re-entered, the 5 Carmel Beach despite signs indicating the beach was closed and a verbal warning from a 6 Carmel officer on-site. TAC ¶¶ 22–23, 26–27. Two Carmel officers then arrested Plaintiff 7 and brought her to jail. TAC ¶ 28. Plaintiff was subject to searches of her person and 8 property by Carmel and Monterey officers following her arrest. TAC ¶¶ 29–31, 35, 38–42. 9 In February 2021, Plaintiff went to the Carmel Police Department “to obtain the 10 body-worn footage” of her July 2020 arrest. TAC ¶ 49. Two Carmel officers informed 11 Plaintiff that they had a warrant for her arrest, which Plaintiff maintains was defective, and 12 proceeded to arrest and search her. TAC ¶¶ 52, 55, 58, 63, 65. 13 The criminal charges against Plaintiff related to these events have since been 14 dismissed. TAC ¶ 70. 15 B. Procedural Background 16 Plaintiff filed this action on June 30, 2022. ECF 1. The Court granted motions to 17 dismiss the initial, first amended, and second amended complaints with leave to amend. 18 ECF 38, 86, 155. Plaintiff filed a third amended complaint. TAC. The Court granted 19 Monterey’s motion to dismiss the third amended complaint without leave to amend. ECF 20 250. The Court granted in part and denied in part the Carmel Defendants’ motion to 21 dismiss the third amended complaint with and without leave to amend. ECF 253. The 22 Court ordered Plaintiff to file an amended complaint, or a statement indicating she did not 23 intend to amend, by October 16, 2024. ECF 266. To date, Plaintiff has filed neither. 24 As to the present motion, the City served Plaintiff with interrogatories and requests 25 for document production. The Court ordered Plaintiff to provide supplemental responses 26 and productions for a limited number of interrogatories and requests for production of 27 documents by June 14, 2024. ECF 165. The Court then extended the deadline to July 15, 1 discovery disputes, the Court offered a second chance and ordered the parties to meet after 2 a hearing. ECF 211. Later, the Court noted that it “finds that Buccola has not complied 3 with the Court’s discovery Order at ECF 165, but the Court will narrow that Order and 4 provide Buccola a further opportunity to comply.” ECF 255. Specifically, the Court 5 ordered Plaintiff to respond to the narrowed discovery by September 9, 2024. ECF 255. 6 The Court wrote that if Plaintiff failed to comply with the order by the extended deadline, 7 the Carmel Defendants “may file a motion seeking leave to file a motion for sanctions 8 under Federal Rule of Civil Procedure 37, as they requested in ECF 244.” ECF 255. 9 The Carmel Defendants filed a Motion to Dismiss for Failure to Comply with 10 Discovery Order, pursuant to Federal Rules of Civil Procedure 37 and 41. ECF 263 11 (Mot.). After the Court sua sponte extended Plaintiff’s time to respond to the motion, ECF 12 269, Plaintiff filed a late opposition. The Court nonetheless considers Plaintiff’s 13 opposition, entitled “Opposition to an Interloper’s Void Document and Objection to 14 Interlocutory Order No. 269.” ECF 271 (Opp’n). The Carmel Defendants filed a reply, 15 ECF 272, and the Court held a hearing on the motion on October 2, 2024, at which 16 Plaintiff and counsel for the Carmel Defendants both appeared. ECF 275. 17 All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 18 U.S.C. § 636(c). ECF 7, 11, 13. 19 II. LEGAL STANDARD 20 Federal Rule of Civil Procedure 41(b) permits a defendant to “move to dismiss the 21 action or any claim against it” when “the plaintiff fails to prosecute or to comply with 22 these rules or a court order.” Rule 37(b)(2)(A) provides that when a party “fails to obey an 23 order to provide or permit discovery,” courts “may issue further just orders,” including 24 “dismissing the action or proceeding in whole or in part.” The Court also “must order the 25 disobedient party . . . to pay the reasonable expenses, including attorney’s fees, caused by 26 the failure, unless the failure was substantially justified or other circumstances make an 27 award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Dismissal for failure to comply 1 III. DISCUSSION 2 Plaintiff does not dispute that she violated the Court’s discovery order. See ECF 3 255; Opp’n. The only question at issue, then, is whether dismissal is the appropriate 4 sanction as requested by the Carmel Defendants. The Court concludes it is, based on an 5 analysis of the relevant factors and Plaintiff’s representations. Plaintiff’s arguments to the 6 contrary focus only on whether her failure to comply with the Court’s order was justified, 7 and are unavailing, as discussed below. The Court therefore dismisses this action as to all 8 Carmel Defendants, but declines to award costs or fees on the motion. 9 A. Dismissal is the Appropriate Sanction for Plaintiff’s Failure to Comply with the Court’s Discovery Order 10 11 Courts weigh five factors in considering whether to dismiss a case for failure to 12 comply with court-ordered discovery: “(1) the public’s interest in expeditious resolution of 13 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 14 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 15 availability of less drastic sanctions.” Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 16 1997) (citation omitted). Applying these factors, dismissal is appropriate here. 17 “Where a court order is violated, the first two factors support sanctions.” Id. 18 (quoting Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). This is 19 because “in this era of crowded dockets,” parties that disobey a discovery order “deprive 20 other litigants of an opportunity to use the courts as a serious dispute-settlement 21 mechanism.” G-K Props. v. Redev. Agency of City of San Jose, 577 F.2d 645, 647 (9th 22 Cir. 1978). And, as here, courts can expend considerable resources resolving discovery 23 disputes. Pagtalunan v. Galaza, 291 F.3d 639, 642 (2002) (“It is incumbent upon the 24 Court to manage its docket without being subject to routine noncompliance of litigants.”); 25 Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1170 (9th Cir. 2012) (noting noncompliance 26 with discovery “led to multiple hearings and motions before this Court which have nothing 27 to do with the merits of this case” and detracted from “the Court’s ability to efficiently 1 “the fourth factor cuts against” dismissal because dismissal for disobeying a discovery 2 order undermines disposition of the case on the merits. Payne, 121 F.3d at 507. 3 Therefore, “it is the third and fifth factors that are decisive.” Adriana, 913 F.2d at 4 1412. As to prejudice to the Carmel Defendants, “[f]ailure to produce documents as 5 ordered . . . is considered sufficient prejudice.” See id. The Carmel Defendants also noted 6 that many of the discovery requests that Plaintiff failed to respond to concern her 7 calculations of damages, preventing them from fully defending against a demand for $52 8 million. See TAC at 16. Further, the Court-ordered discovery concerned Plaintiff’s social 9 media statements about the events underlying this action. See Adriana, 913 F.2d at 1412 10 (“A defendant suffers prejudice if the plaintiff’s actions impair the defendant’s ability to 11 go to trial or threaten to interfere with the rightful decision of the case.”). Plaintiff’s 12 noncompliance thus prejudices the Carmel Defendants. 13 As to the fifth factor, the Court has both exercised and considered less drastic 14 sanctions. The Court extended the time for Plaintiff to respond to discovery multiple times 15 and narrowed the scope of ordered discovery. See Chase v. Int’l Ass’n of Machinists and 16 Aerospace Workers, No. 20-cv-08841-ODW-SK, 2022 WL 2052657, at *6 (C.D. Cal. Apr. 17 8, 2022) (recognizing orders to respond to discovery and extensions of time as less drastic 18 sanctions). Plaintiff was also on notice before the filing of the present motion that the 19 Carmel Defendants sought to dismiss this matter because she had not complied with the 20 discovery order, see ECF 244, and that the Court indicated the Carmel Defendants could 21 seek leave to do so if she continued to not comply. See ECF 255; Chase, 2022 WL 22 2052657, at *6 (recognizing warnings that failure to obey a court order could lead to 23 dismissal as less drastic sanctions). 24 At the motion hearing, the Court asked Plaintiff about alternate sanctions and 25 invited her to suggest any lesser sanctions that might be appropriate. In particular, the 26 Court suggested excluding Plaintiff from presenting damages at trial, and repeatedly asked 27 Plaintiff if she would respond to the ordered discovery if the matter was stayed until she 1 obligation to comply with discovery in any form and would not be a willing participant in 2 doing so.2 Since the hearing, Plaintiff has further objected to communicating or 3 cooperating with opposing counsel and has failed to comply with a filing deadline. In 4 particular, the Court ordered Plaintiff to file an amended complaint, or statement indicating 5 she did not intend to amend her complaint, by October 16, 2024. ECF 266. Plaintiff failed 6 to do either and instead filed an “Objection” to the Court’s order that stated she “continues 7 to recoil from . . . the court’s seeming necessity to compel the Plaintiff to answer and 8 respond” to “the traitorous acts of pretend counsel.” ECF 277 at 2. In a Petition for Writ 9 of Habeas Corpus filed the next day, Plaintiff identified herself as “a woman who is 10 refusing to do business or interact with” opposing counsel. ECF 278 at 4, 5. 11 As a result, the Court concludes lesser sanctions would be fruitless; an extension of 12 discovery deadlines or stay of the case would be futile given Plaintiff’s declared intent to 13 defy discovery orders and pattern of refusing to respond to opposing counsel or adhere to 14 Court orders. And excluding evidence of damages at trial would not remedy Plaintiff’s 15 nonresponse to discovery concerning the events underlying this matter. “[I]t is appropriate 16 to reject lesser sanctions where the court anticipates continued deceptive misconduct.” 17 Comput. Task Grp., Inc. v. Brotby, 364 F.3d 1112, 1116–17 (9th Cir. 2004) (citation 18 omitted). 19 Finally, a party’s noncompliance with a discovery order “must be due to 20 willfulness, fault, or bad faith” to justify case-dispositive sanctions. Id. at 1115. Plaintiff 21 has not offered any arguments to suggest mistake or error led to her failure to comply with 22 the Court’s discovery order, and instead has appeared deliberate and steadfast in her efforts 23 to pole-vault over her discovery obligations. 24 Taken together, these factors weigh in favor of dismissal under Rule 37(b). 25 1. Plaintiff’s Arguments Lack Merit 26 Plaintiff raised three related arguments in her defense at the hearing and in her 27 1 Opposition, arguing that she should not have been ordered to respond to discovery from 2 opposing counsel in the first instance and is still not obligated to do so. The Court has 3 addressed each argument previously but will do so again here. Ultimately, Plaintiff’s 4 arguments are unavailing, and none speak to why Plaintiff could willingly ignore a Court 5 order. 6 a. Status and Standing of Opposing Counsel 7 In Plaintiff’s Opposition, she argues she “is under no obligation to respond to [the 8 motion to dismiss] entered by a repeated trespasser” because counsel for the Carmel 9 Defendants “Mr. Fay has no authority, standing or business entering anything into this 10 case.” Opp’n 1. Plaintiff’s arguments stem from Jonathan Redford’s, the former lead 11 attorney for the Carmel Defendants, error in practicing in this matter when he was not a 12 member of the bar of the Court, in violation of the Northern District of California’s Civil 13 Local Rules. Though stemming from a legitimate slight, this subject has now been 14 thoroughly addressed by the Court, which concluded Plaintiff was not prejudiced by 15 Redford’s unauthorized practice and that current counsel, Thomas Fay, is authorized to 16 litigate this action. See ECF 149, 158, 211. 17 b. Default Judgment 18 Relatedly, Plaintiff has argued she is entitled to default judgment based on opposing 19 counsel’s lack of standing. At the motion hearing, Plaintiff emphasized Dr. JKL Ltd. v. 20 HPC IT Educ. Ctr. as controlling authority that she need not respond to opposing counsel 21 or, apparently, the Court’s discovery order. See 749 F. Supp. 2d 1038 (N.D. Cal. 2010). 22 As an initial matter, Dr. JKL is not controlling here, though the Court has nonetheless 23 reviewed the decision. Hart v. Massanari, 266 F.3d 1155, 1174 (9th Cir. 2001) 24 (discussing how district court opinions are persuasive but not binding on other courts in the 25 district). More importantly, the facts here are not analogous to those in Dr. JKL. In Dr. 26 JKL, District Court Judge Richard Seeborg3 granted a motion to strike and motion for 27 1 default, in part because one of the corporate parties was represented by a pro se litigant in 2 violation of a Local Rule requiring corporations to be represented by licensed counsel. 3 749 F. Supp. 2d at 1046, 1048, 1051. No corporations are parties to this case. In Dr. JKL, 4 the parties also failed to cure their error despite having the opportunity to do so. Id. Here, 5 counsel for the Carmel Defendants have remedied their errors such that they are all 6 members of the bar of the Court who have properly appeared in this matter. 7 Dr. JKL also does not support the positions Plaintiff advocates. Judge Seeborg 8 cited Civil Local Rule 3-9(b): “Sanctions (including default or dismissal) may be imposed 9 for failure to comply with local rules.” Id. at 1046 (emphasis added). Here, the Court has 10 already assessed and issued sanctions as to former and current counsel for the Carmel 11 Defendants as it has deemed appropriate. See ECF 251, 270, 283. Plaintiff also 12 conveniently overlooks one of the key reasons Judge Seeborg granted the motions to strike 13 and for default—the corporation’s failure to respond to a motion from the opposing party. 14 Dr. JKL, 749 F. Supp. 2d at 1046, 1048, 1051. Notably, Judge Seeborg emphasized that a 15 pro se litigant “must comply with both the local and the Federal Rules, both in terms of 16 pleading requirements and filing deadlines . . . and cannot simply ignore a motion filed by 17 the opposing party.” Id. 18 The Court also discusses Dr. JKL and why it does not entitle Plaintiff to default 19 judgment in its order denying Plaintiff’s motion for entry of default, ECF 281, which 20 Plaintiff filed the same day as the motion hearing, ECF 274. 21 c. Agreement with Opposing Counsel 22 In addition, Plaintiff points to an email she sent to opposing counsel demanding 23 documentation to prove their licensure and professional standing, and warning that their 24 failure to respond by a certain time would constitute tacit agreement that counsel lacked 25 standing to litigate this matter. See ECF 274, Ex. C. Plaintiff argued at the motion hearing 26 that her email constituted a private contract between the parties (and possibly the Court), 27 and that opposing counsel’s nonresponse obviated the need for her to abide by the Court’s 1 establish a contract. S.F. Iron & Metal Co. v. Sweet Steel Co., 23 F.2d 783, 785 (9th Cir. 2 1928) (“It is true that a mere offer made to another, does not become an agreement merely 3 from the fact that the person to whom it is made makes no reply, even though the offer 4 states that silence will be taken for consent.”). And nothing in Plaintiff’s unanswered 5 email could constitute permission from the Court to ignore its discovery order. The Court 6 has further addressed this argument in its orders denying Plaintiff’s motion for entry of 7 default and motion seeking leave of Court to file six motions for reconsideration. ECF 281 8 at 1–2; ECF 282 at 4. 9 2. The Court Dismisses the Action as to all Carmel Defendants with Prejudice 10 11 The Court notes that Plaintiff failed to comply with an order concerning discovery 12 propounded only by the City, not all Carmel Defendants. Nonetheless, the Court finds it 13 appropriate to dismiss this action as to all Carmel Defendants because Plaintiff herself 14 alleges the individual Defendants are agents of the City, the ordered discovery pertained to 15 all Carmel Defendants, and the Carmel Defendants share common counsel. See Payne, 16 121 F.3d at 510 (noting court’s discretion to determine the scope of sanctions for failure to 17 comply with a discovery order and finding it reasonable to conclude noncompliance could 18 prejudice multiple parties). Plaintiff also did not, for example, specify that she only 19 refuses to participate in discovery from just the City, but rather has objected to discovery 20 and filings from any and all Carmel Defendants and their shared counsel. 21 Because dismissal for failure to comply with a court order under Rules 37(b) and 22 41(b) “operates as an adjudication on the merits,” the Court dismisses this matter as to all 23 Carmel Defendants with prejudice. See Fed. R. Civ. P. 41(b). 24 B. No Costs or Attorney’s Fees are Awarded on the Motion 25 Although courts typically must order a party that disobeys a discovery order to pay 26 the opposing party’s reasonable expenses, the Court finds the “circumstances make an 27 award of expenses unjust” here. See Fed. R. Civ. P. 37(b)(2)(C). The Carmel Defendants 1 || indicated they plan to seek attorney’s fees under separate statutory authority. Moreover, 2 || Plaintiff is a pro se litigant bringing a civil rights action. The Court does not want to 3 || dissuade other litigants who may not be able to afford counsel from bringing actions 4 || seeking to safeguard important rights. 5 || IV. CONCLUSION 6 The Court dismisses this matter as to the Carmel Defendants with prejudice. 7 || Judgment will be entered in a separate order. No costs or fees are awarded in connection 8 || with the motion. 9 IT IS SO ORDERED. 10 11 || Dated: October 24, 2024 □ f{eee—

NATHANAEL M. COUSINS

12 United States Magistrate Judge

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