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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT DODSON

Plaintiff, No. CIV S-04-1068 MCE CMK

vs.

DOLLAR TREE STORES, 

INC., et al., 

Defendants.

 / FINDINGS AND RECOMMENDATIONS

Plaintiff filed this action against defendants Dollar Tree Stores and Jason Matecki,

alleging that she was discriminated against by encountering various architectural damages in

violation of the ADA and California law. 

On April 12, 2005, the undersigned heard plaintiff’s motion to compel sanctions

for failure to respond to discovery requests against defendant Matecki. In light of defendant

Matecki’s pro se status, the undersigned issued an order on April 26, 2005 ordering defendant

Matecki to show cause within fifteen days why sanctions should not be imposed for his failure to

respond to discovery requests and to appear at his deposition. Defendant was warned that failure

to respond to the court’s order would result in the imposition of sanctions. 

///

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2

Defendant Matecki failed to respond to the order to show cause, and, on May 11,

2005, the undersigned filed an order directing defendant Jason Matecki to, within twenty days,

admit or deny plaintiff’s requests for admissions, provide substantive answers to plaintiff’s

interrogatories, and contact the office of plaintiff’s attorney to arrange a mutually agreeable date

for taking his deposition. The court also awarded plaintiff $500 for reasonable expenses incurred

in preparing the motion for sanctions. Defendant was warned that failure to comply with the

court’s May 11, 2005 order could result in the imposition of additional sanctions. 

On May 17, 2005, defendant Matecki requested that the court allow him to obtain

counsel. The undersigned filed an order advising plaintiff that he did not need leave of the court

to hire an attorney and that his search for an attorney did not relieve him of the sanctions and

deadlines imposed in the court’s May 11, 2005 order. On June 2, 2005, plaintiff’s counsel, by

way of a letter, informed the court that defendant Matecki had failed to comply with the

sanctions and deadlines imposed by the May 11, 2005 order. The undersigned therefore

recommends the imposition of the following sanctions. 

Rule 37 allows the imposition of sanctions against a party for disregard of the

obligations imposed by the discovery rules. Fed. R. Civ. P. 37(b), (c) and (d). “A party that,

without substantial justification fails to disclose information required by Rule 26(e)(1)...is

not...permitted to use as evidence at trial, at a hearing, or on a motion any witness or information

not disclosed.” Fed. R. Civ. P. 37(c)(1). Here, Defendant Matecki has failed to respond to any

of plaintiff’s discovery requests. He has failed to respond to the court’s order that he show cause

justifying his failure to respond. In its May 11, 2005 order the undersigned noted that it was not

clear whether defendant’s failure to comply with plaintiff’s discovery requests and the order to

show cause was willful or due to defendant’s inability as a pro se litigant to respond. However,

in light of defendant Matecki’s failure to comply with the deadlines and sanctions in the May 11,

2005 order, the undersigned finds that the failure to respond to discovery is willful. 

///

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3

The court is mindful that exclusion sanctions based on alleged discovery

violations are generally improper absent undue prejudice to the opposing side. See Wendt v.

Host Int’l Inc., 125 F.3d 806, 814 (9th Cir. 1997). A district court must determine whether a

sanction is proper “under a five part test analyzing: 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

[party seeking sanctions]; 4) the public policy favoring disposition of cases on their merits; and

5) the availability of less drastic sanctions." Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir.

1990). In Hamilton Copper & Steel Corp. v. Primary Steel, 898 F.2d 1428, 1429 (9th Cir. 1990),

the court noted that the two factors which are decisive are the availability of less drastic sanctions

and the lack of prejudice. 

A weighing of the five factors supports the sanction of prohibiting defendant

Matecki from introducing documentary evidence and from testifying at trial. 1) Defendant’s

repeated refusal to respond to discovery requests, appear for deposition and refusal to respond to

orders of the court is interfering with the timely resolution of this litigation. 2) Defendant has

willfully undertaken to manage this court's docket. 3) Plaintiff’s have been prejudiced by having

to file motions with the court to compel discovery and are left with no basis for a dialogue that

might refine and move the discovery process along. 4) Precluding defendant Matecki from

introducing evidence and testifying at trial would not necessarily preclude disposition of the case

on its merits. ADA cases are generally driven by undisputed technical violations of the statute

and do not often turn on factual disputes. Accordingly, the public policy favoring disposition of

cases on their merits is not offended by precluding defendant Matecki from testifying or

introducing evidence. As to the last factor, this court has considered the imposition of less

drastic sanction. The imposition of monetary sanctions is apparently unavailing against this

defendant. Defendant Matecki has been offered several chances to explain his failure to respond

to discovery. Plaintiff has demonstrated, by his refusal to respond, that the imposition of less

drastic sanctions make no impression upon him. 

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IT IS HEREBY RECOMMENDED that:

1. Defendant Matecki be prohibited from introducing evidence at trial; and

2. Defendant Matecki be prohibited from testifying on his own behalf at trial.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: June 8, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

Plaintiff, No. CIV 

vs.

 NOTICE OF SUBMISSION

Defendants. OF DOCUMENTS

 /

Plaintiff hereby submits the following documents in compliance with the court's

order filed :

 completed summons form

 completed USM-285 forms

 copies of the 

 Complaint/Amended Complaint

DATED: 

 

Plaintiff

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