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United States District Court 

For the Northern District of California 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

MARCUS LANDRY AND DANIEL LANDRY, 

Plaintiffs, 

v. 

CITY AND COUNTY OF SAN FRANCISCO; 

HEATHER FONG; FREDERICK SCHIFF; 

CALLAWAY, #360; McCALL, #901; 

PLAMA, #841; PERSONAL PROTECTIVE 

SERVICES; PETE RODRIGUEZ; RENE 

GARCIA; PAT YOUNG; JACK NYCE; 

GARNER, #186; K. McARTHUR; WONG, 

#2038; MARIANO, #2191; PARKER, 

#121; CATHEY, #1090; HALLISY, 

#794; RODRIGUEZ, #1976; JACKSON, 

#275 and DOES 1 to 100, 

Defendants. 

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Case No. 08-3791 SC 

ORDER DISMISSING ACTION

I. INTRODUCTION

Now before the Court is a Motion for Terminating Sanctions or 

in the Alternative for Issue and Further Monetary Sanctions 

("Motion") submitted by Defendant City and County of San Francisco 

("San Francisco"). Docket No. 86. Defendants Personal Protective 

Services, Kevin McArthur, and Pete Rodriguez (collectively, "PPS") 

seek to join in the Motion. Docket No. 88 ("Joinder"). Plaintiffs 

Marcus Landry and Daniel Landry ("Plaintiffs") have filed an 

Opposition. Docket No. 89. San Francisco and PPS have filed 

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replies. Docket Nos. 91 ("PPS Reply"), 92 ("SF Reply"). The 

parties appeared before the Court for a hearing on Friday, April 9, 

2010. Having considered the submissions of all parties, as well as 

the statements made at the hearing, the Court concludes that 

terminating sanctions are appropriate and GRANTS the Motion. 

II. BACKGROUND

This Motion represents the last in a series of sanctions and 

discovery-related orders issued against Plaintiffs and their 

counsel, Gregory Haynes ("Haynes"), during the course of this 

action. San Francisco first moved for sanctions against Plaintiffs 

on May 20, 2009, on the grounds that "plaintiffs have refused to 

provide responses to defendants' interrogatories and document 

requests and have refused to provide their initial disclosures." 

Docket Nos. 23, 32. On June 18, 2009, Magistrate Judge James 

("Judge James"), the magistrate judge to whom discovery issues in 

this matter have been referred, ordered Plaintiffs to provide 

initial disclosures and respond to the interrogatories by June 26, 

2009, but denied without prejudice San Francisco's request for 

sanctions. Docket No. 39. Plaintiffs failed to comply with Judge 

James' order, and failed to heed her rather explicit warning. 

On June 30, 2009, San Francisco indicated in a letter to Judge 

James that Plaintiffs had failed to meet the deadline for 

compliance, and renewed their motion for sanctions. Docket No. 41. 

At some point, Plaintiffs did provide responses to Defendants' 

interrogatories, but in their responses, Plaintiffs refused to 

identify any incidents of arrest or detention besides those 

described in the Complaint. See Docket No. 75 ("Nov. 11, 2009 

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Letter") Exs. 1 ("M. Landry Responses") at 2, 2 ("D. Landry 

Responses") at 2-3.1 On July 30, 2009, Judge James issued an order 

sanctioning Haynes in the amount of $1500 for his failure to comply 

with her previous order. Docket No. 52 ("First Sanction Order") at 

2. Payment of the sanctions was due by August 20, 2009. Id.

 Defendants deposed Marcus Landry on September 29, 2009. Per 

Haynes' advice, Marcus Landry refused to answer a number of 

questions related to his prior incidents of detention by police. 

See Nov. 11, 2009 Letter Ex. 3 ("M. Landry Dep. Excerpts") at 81-

88, 90-97. Similarly, on October 1, 2009, Daniel Landry was 

deposed, and he refused to answer similar questions upon the advice 

of Haynes. Id. Ex. 4 ("D. Landry Dep. Excerpts") at 106-07. 

On September 8, 2009, San Francisco indicated to Judge James 

that Haynes had still not paid the $1500 sanctions, and Judge James 

issued an Order to Show Cause. Docket Nos. 59, 61. The show-cause 

hearing was held on October 8, 2009, and Judge James ordered that 

the sanctions increase by $100 per day for every day after November 

12, 2009, that the sanctions remain unpaid. Docket No. 70 ("Oct. 

8 Order"). After the hearing, Haynes apparently engaged in an 

altercation with counsel for San Francisco, Daniel Zaheer 

("Zaheer"). The incident report from Federal Protective Services 

("FPS") and the U.S. Marshal Field Report indicate that Haynes 

repeatedly shouted profanity at Zaheer and the Inspectors who were 

responding to the incident. Mot. Exs. 15 ("FPS Incident Report") 

at 3, 6; 16 ("Marshal Field Report") at 3. When Haynes was asked 

to leave, he "became assaultive towards the FPS officer," and was 

 

1

 It is not clear when Defendants received these responses. The 

responses bare the date of June 30, 2009. M. Landry Responses at 

9; D. Landry Responses at 9. 

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United States District Court

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"escorted out of the building without any physical contact." FPS 

Incident Report at 3, 6. 

 Because of the various ongoing discovery disputes, on October 

22, 2009, this Court vacated the trial date of January 11, 2010. 

Docket No. 74. On November 11, 2009, San Francisco filed another 

Motion to Compel with Judge James. Nov. 11, 2009 Letter at 1. The 

city sought interrogatory answers related to Plaintiffs' prior 

convictions, arrests, and police detentions, as well as answers to 

deposition questions on the same topics. Id. 

 While the latest motion to compel was pending before Judge 

James, this Court held a status conference on November 20, 2009. 

The Court questioned both Zaheer and Haynes about the altercation 

that occurred after the October 8, 2009 show-cause hearing,2 and 

informed them that the behavior of both attorneys was intolerable. 

See Docket No. 79 ("Minute Order"). The Court further informed the 

parties that it would not allow additional fighting between the 

attorneys and ordered them to take any future disagreements 

directly to this Court for determination. Id. The parties were 

explicitly warned that, should they fail to cooperate in the 

future, the Court would consider terminating sanctions. 

On December 28, 2009, Judge James granted San Francisco's most 

recent motion to compel, and ordered Plaintiffs to comply with the 

city's discovery requests related to Plaintiffs' prior convictions, 

arrests, and police detentions. Docket No. 83 ("Judge James' 

Order"). Judge James also ordered Haynes to pay additional 

 

2

 The Court also received a written account of the incident from 

Haynes. Docket No. 80. Even if this incident is interpreted in 

the best possible light, it is clear that the attorneys, and Haynes 

in particular, acted in an inappropriate manner. 

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sanctions of $835. Id. Haynes did not comply. Haynes has not 

provided this Court with an explanation for his decision to flout 

Judge James' Order, however counsel for San Francisco has indicated 

that Haynes offered the following justification for his failure: 

Haynes claimed that this Court's November 20, 2009 Minute Order, 

which ordered the parties to bring their disputes to this court for 

ruling, deprived Judge James of her authority to rule upon the 

discovery dispute that was already pending before her. Docket No. 

84 ("Mot. for Clarification") at 1-2. The Court finds this 

argument to be specious. If Haynes actually believed that this 

Court's Minute Order had cast any doubt of the legitimacy of Judge 

James' subsequent ruling, he failed to notify this Court of this 

belief, or to otherwise seek redress from the supposedly 

unauthorized order. He simply refused to provide the discovery 

that Judge James had explicitly ordered him to provide. 

On February 3, 2010, this Court dispelled any basis for 

doubting the authority of Judge James' discovery order, by posting 

an order clarifying its earlier Minute Order. Docket No. 85 

("Clarification Order"). This Court stated that "[b]ecause Judge 

James' Order addressed a dispute that was raised to her before this 

Court's Minute Order, Judge James' Order is to have full force and 

effect." Id. at 2. It added the following warning: "In light of 

the previous friction addressed by this Court, the parties are 

reminded that the Court can and will issue sanctions, up to and 

including dismissal of this action, should the parties' misconduct 

and meritless disagreement continue." Id.

On the day that this Court posted the Clarification Order, 

Zaheer emailed Haynes with a suggested schedule for compliance with 

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United States District Court

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Judge James' Order, as the original schedule had long since lapsed. 

Mot. Ex. 17. As far as this Court knows, Haynes did not provide a 

response, and Plaintiffs have not provided the discovery that had 

been ordered by Judge James or by this Court.3 Id. Twenty-three 

days later, on February 26, 2010, San Francisco filed the Motion 

for terminating sanctions that is now before this Court. 

III. LEGAL STANDARD

In addition to the explicit statutory authority codified by 

Rule 37(b) of the Federal Rules of Civil Procedure, "courts have 

inherent power to dismiss an action when a party has willfully 

deceived the court and engaged in conduct utterly inconsistent with 

the orderly administration of justice." Wyle v. R.J. Reynolds 

Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983) (citing 

Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 

806 (9th Cir. 1982)). In determining whether to issue terminating 

sanctions, district courts must weigh the following five factors: 

(1) the public's interest in expeditious 

resolution of litigation; (2) the court's need to 

manage its dockets; (3) the risk of prejudice to 

the party seeking sanctions; (4) the public 

policy favoring disposition of cases on their 

merits; and (5) the availability of less drastic 

sanctions. The sub-parts of the fifth factor are 

whether the court has considered lesser 

sanctions, whether it tried them, and whether it 

warned the recalcitrant party about the 

possibility of case-dispositive sanctions. 

 Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 

 

3

 At the hearing, the Court confronted Haynes about an email in 

which he stated "I will not further respond." Haynes explained 

that this was not a response to Zaheer's email of February 3, 2010, 

but was in fact a response related to an earlier dispute with 

Zaheer. Nevertheless, Haynes did not indicate that he ever 

responded to Zaheer's reasonable request, and it remains undisputed 

that Plaintiffs have not complied with Judge James' Order. 

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1091, 1096 (9th Cir. 2007) (footnotes omitted). "The list of 

factors amounts to a way for a district judge to think about what 

to do, not a series of conditions precedent before the judge can do 

anything . . . ." Valley Eng'rs v. Electric Eng'g Co., 158 F.3d 

1051, 1057 (9th Cir. 1998). Nevertheless, terminating sanctions 

are only appropriate where "the losing party's noncompliance [is] 

due to willfulness, fault, or bad faith." Computer Task Group, 

Inc. v. Brotby, 364 F.3d 1112, 1115 (quoting Payne v. Exxon Corp., 

121 F.3d 503, 507 (9th Cir. 1997)). "Disobedient conduct not shown 

to be outside the control of the litigant is sufficient to 

demonstrate willfulness, bad faith, or fault." Hyde & Drath v. 

Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). 

IV. DISCUSSION

 Neither Plaintiffs' Opposition nor Haynes' statements at oral 

arguments attempt to explain why Plaintiffs have failed to comply 

with Judge James' most recent discovery order, or with this Court's 

Clarification Order, which stated that Judge James' Order was to 

have full force and effect. Most of the Opposition focuses on 

unrelated aspects of disputes that Haynes has had with Defendants' 

attorneys, including allegedly "false allegations" made by 

Defendants, the minutia of the apparent assault, details concerning 

unrelated conflicts with the city's other attorneys, and San 

Francisco's earlier reluctance to make a certain defense witness 

available for deposition by Haynes.4

 None of this excuses 

 

4

 The Court is particularly dismayed by Plaintiffs' attempt to 

divert this Court's attention by making hay out of an incident at a 

deposition in which Zaheer allegedly "pushed [a] paper back at Mr. 

Landry, hitting him." Opp'n at 4. 

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Plaintiffs' noncompliance with Judge James' Order. While Haynes' 

repeated misconduct throughout this litigation serves to inform 

this Court regarding the severity of the sanction that is 

appropriate, and whether lesser sanctions may be futile, the 

current Motion addresses Plaintiffs' open and repeated refusal to 

comply with Judge James' Order of December 28, 2009, and this 

Court's later orders directing, in no uncertain terms, compliance 

with Judge James' Order. Plaintiffs have not offered any 

satisfying basis for withholding sanctions for this willful 

violation. 

 Plaintiffs have offered only limited discussion of Judge 

James' Order, and most of this discussion focuses on the merits of 

the Order, rather than Plaintiffs' noncompliance. Plaintiffs take 

issue with "this letter" -- presumably the letter sent by San 

Francisco to Judge James on November 11, 2009, which sought to 

compel the discovery that was later directed in Judge James' Order. 

Opp'n at 5-6. Plaintiffs claim that there was no meet and confer 

"prior to seeking forth his letter," and that there "is no 

information needed that has not been provided at the deposition." 

Id. at 5. However, Plaintiffs fail to establish that they have 

ever supplied the information that they were ordered to provide. 

Moreover, Plaintiffs had the opportunity to address the merits of 

San Francisco's motion to compel months ago, according to the 

procedure for addressing discovery disputes that Judge James set 

out in her earlier order of October 8, 2009. See Oct. 8 Order at 

1. Plaintiffs' attempt to avoid sanctions by undermining the 

propriety of Judge James' Order must fail. Judge James issued an 

Order, and the Court sees no reason, either in the record or in any 

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of the flimsy or pretextual reasons now offered by Plaintiffs, for 

disturbing it. 

 The Court now turns to the five-factor test outlined above to 

determine whether dismissal of this suit is an appropriate response 

to Plaintiffs' willful misconduct. Throughout this process, San 

Francisco has continued to pursue, at public expense, information 

that is immediately relevant to the damage element of Plaintiffs' 

claims. Consideration of the public interest clearly favors swift 

dismissal of this action, given that lesser sanctions will likely 

result in nothing more than additional delays, and additional 

public expense. This Court doubts that further prosecution of this 

matter would be likely to result in a public benefit. Actions of 

this nature can only serve the public when they are well founded 

and faithfully prosecuted, yet Plaintiffs' conduct suggests that 

they have little interest in seeing justice done. Plaintiffs' 

chronic refusal to pursue this matter in good faith, and their open 

defiance of multiple court orders, cast doubt on their motivation 

for pursuing this litigation. Consideration of the public interest 

therefore weighs in favor of dismissal. 

 Consideration of this Court's docket also weighs in favor of 

dismissal. As San Francisco points out, "48 of this cases' 85 

docket items have concerned plaintiffs' and plaintiffs' counsel's 

misconduct." Mot. at 7. Plaintiffs' bad-faith refusal to 

cooperate with Defendants' discovery requests, and to comply with 

this Court's discovery orders, has wasted too much of the Court's 

time and resources. The trial in this matter was scheduled to 

occur last January, and has been delayed because of the continuing 

discovery disputes and the inability of the parties -- particularly 

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Plaintiffs -- to cooperate. This factor weighs in favor of 

dismissal. 

 The Court finds that Defendants would be prejudiced by a 

failure to issue sanctions in this instance. San Francisco has 

continued to seek information that is immediately relevant to its 

defense in this matter. Plaintiffs' failure to provide this 

information undermines Defendants ability to disprove one or more 

of Plaintiffs' theories of damages. Moreover, "[w]here counsel 

continues to disregard deadlines, warnings, and schedules set by 

the district court, . . . a lack of prejudice to defendants is 

[not] determinative." Henderson v. Duncan, 779 F.2d 1421, 1425 

(9th Cir. 1986). This Court has repeatedly and unambiguously 

ordered Plaintiffs to produce the requested information, and 

Plaintiffs have openly flouted this Court's direction. At this 

point, "the integrity of the district court is involved. In this 

case, the district court did warn explicitly of the consequences of 

counsel's dilatory behavior, and imposed a schedule for discovery. 

. . ." Id. Even in the absence of prejudice to Defendants, 

dismissal would be warranted. 

 As for "the public policy favoring disposition of cases on 

their merits," this factor inherently disfavors dismissal. 

Nevertheless, any interest in resolving this dispute on the merits 

is undermined by Plaintiffs' failure to cooperate to ensure that 

resolution on the merits will be based on a full record containing 

all relevant facts. 

 Plaintiffs, and Haynes in particular, have already faced 

multiple orders compelling production and issuing lesser sanctions. 

They have been warned that they would face dismissal should their 

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noncompliance continue. Yet Plaintiffs continue to fail to 

cooperate with Defendants' discovery requests in good faith, even 

when repeatedly ordered to do so. Judge James previously 

considered and tried lesser monetary sanctions against Haynes. See

First Sanction Order at 2; Judge James Order at 2. Haynes failed 

to pay the first sanctions on time, and other monetary sanctions 

remain outstanding. Plaintiffs' "compliance" with prior discovery 

orders has been blatantly nonresponsive. See M. Landry Responses 

at 2; D. Landry Responses at 2-3. This Court has warned Plaintiffs 

that their conduct could lead to terminating sanctions, not once, 

but on two separate occasions. See Minute Order; Clarification 

Order at 2. In this case, the threat and efficacy of less drastic 

sanctions has proven to be negligible. Upon consideration of all 

factors, the relevant facts of this case, and the history of the 

attorneys' conduct in this matter, the Court concludes that 

dismissal is appropriate. 

V. CONCLUSION 

 The Court finds that Plaintiffs have willfully defied the 

orders of Judge James and of this Court. The repeated and 

continuous nature of the misconduct, as well as the unprofessional 

conduct of Haynes, fail to demonstrate even the modest levels of 

civility necessary to carry a civil matter to trial. The monetary 

sanctions ordered by Judge James in her order of December 28, 2009, 

remain outstanding. The Court therefore concludes that terminating 

sanctions are now appropriate. 

 The Court notes that Plaintiffs themselves have not been 

especially cooperative throughout the prosecution of this matter, 

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although their refusal to cooperate during depositions was based at 

least in part upon the advice of Haynes. Nevertheless, this 

dismissal is based primarily upon the repeated misconduct of 

Haynes. To the extent that this misbehavior was outside of their 

control, Plaintiffs may have other avenues for seeking remedies 

against their attorney, should they wish to pursue them. This 

matter is DISMISSED WITH PREJUDICE. 

 

IT IS SO ORDERED. 

Dated: April 9, 2010 

UNITED STATES DISTRICT JUDGE

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