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W.O.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Plaintiff failed to appear for his deposition scheduled for Thursday, October 10, 2019

at 10:00 a.m. (Doc. 53) The parties filed a Joint Statement of Discovery Dispute, where 

Plaintiff argued that his absence from the deposition should be excused. (Doc. 60) The 

Court set a discovery dispute hearing for November 26, 2019 at 9:00 a.m. (Doc. 61) 

Plaintiff again failed to appear at the hearing. (Doc. 70) For the following reasons, the 

Court will dismiss this case for failure to prosecute. 

I. Background

Plaintiff sustained multiple injuries at work while employed as a railroad conductor for 

Defendant. (Doc. 18 at 1-5) On December 29, 2017, Plaintiff, acting pro se, filed this 

lawsuit. (Doc. 1) On June 29, 2018, Plaintiff filed an amended complaint, alleging claims 

under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq.; the Federal Railroad 

Safety Act, 49 U.S.C. § 20109; the Federal Safety Appliance Act, 49 U.S.C. § 20302 et 

seq.; and the federal regulations governing track safety standards, 49 C.F.R. § 213.1 et seq. 

(Doc. 18 at 1-5) The Court set the discovery deadline for January 17, 2020, and the parties 

Dalonno C. Johnson, 

 

Plaintiff,

vs. 

Union Pacific Railroad Company, 

Defendant.

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No. CV-17-04803-PHX-SPL 

ORDER 
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began the discovery process. (Docs. 28, 45)

On September 20, 2019, Defendant filed notice of Plaintiff’s deposition scheduled for 

October 10, 2019. (Doc. 53) On September 25, 2019, Plaintiff filed a Motion to Appoint 

Counsel. (Doc. 54) On October 8, 2019, Plaintiff sent the defense counsel several emails 

indicating that he did not intend to appear for the deposition. (Doc. 60-1 at 12-15) On 

October 9, 2019—one day before the deposition—Plaintiff filed an Emergency Motion for 

Protective Order. (Doc. 57) In the motion, Plaintiff requested a protective order because 

Plaintiff’s Motion to Appoint Counsel was still outstanding. (Doc. 57 at 3) At 10:00 a.m. 

on the day of the deposition, Plaintiff failed to appear. (Doc. 60 at 3-4) The same day, the 

Court issued an order denying Plaintiff’s request for counsel and his request for a protective 

order. (Docs. 58, 59) 

On October 15, 2019, Plaintiff and Defendant filed a Joint Statement of Discovery 

Dispute. (Doc. 60) Pursuant to Federal Rule of Civil Procedure 30(g), Defendant sought

sanctions in the amount of $500 due to Plaintiff’s failure to attend his deposition. (Doc. 60

at 2) Defendant asserted that it incurred $270 in deposition-related expenses and $230 in 

attorneys’ fees. (Doc. 60 at 2)

In response, Plaintiff argued that Defendant unilaterally set a time for the deposition, 

and Defendant refused to reschedule when Plaintiff indicated that he could not appear. 

(Doc. 60 at 3) Plaintiff asserted that he has “a disability that [hinders] his physical and 

cognitive capabilities,” and he felt that his interests would be better protected with 

representation at the deposition. (Doc. 60 at 3) Therefore, Plaintiff wanted to wait until 

after the Court ruled on his Motion to Appoint Counsel before scheduling the deposition. 

(Doc. 60 at 3-4) The Court set a hearing on the discovery dispute for November 26, 2019 

at 9:00 a.m. (Doc. 61) Plaintiff failed to appear for the hearing. (Doc. 70) 

II. Discussion

“Plaintiffs have the general 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, 
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2018) (citing Fidelity Phila. Tr. Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th 

Cir. 1978)). A court may act sua sponte when dismissing a case for lack of prosecution. 

Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984). Only “unreasonable” delay will support 

a dismissal for lack of prosecution. Id. 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 may be affirmed when at least four 

factors favor dismissal or at least three factors strongly favor dismissal.” Id. The Court 

reviews each factor below. 

A. Factors One and Two: Expeditious Resolution of Litigation and 

Management of The Court’s Docket

The Court finds that the first two factors favor dismissal. 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. The Court finds that the delay caused by Plaintiff in this case 

is unreasonable and has caused an interference with the Court’s docket. Plaintiff has twice 

failed to appear when his appearance was necessary to move this case forward. It is clear 

that Plaintiff does not respect the Court’s time. Plaintiff is taking away time that could be 

devoted to other cases on the Court’s active docket. 

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). The Court finds that the third factor also favors dismissal. 

The underlying event which predicated this case is Plaintiff’s injury at work. Only Plaintiff 

knows key information necessary to establish the timeline of events and other relevant 
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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.”)

(internal citation omitted). The Court finds that Plaintiff’s repeated absence is unreasonable 

and prejudicial to Defendants’ ability to form a defense in this case.

C. Factor Four: The Availability of Less Drastic Matters 

A court has great discretion in reprimanding a party who unnecessarily delays 

discovery. See Fed. R. Civ. P. 37. 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). However, when a party engages in egregious behavior—such as the repeated 

failure to comply with a court’s order—then the explicit discussion of alternative sanctions 

is unnecessary. Id. 

Here, Plaintiff timely received notice of the scheduled deposition, but Plaintiff chose to 

wait until the day before the deposition to file a motion for protective order. (Docs. 53, 57) 

Additionally, Plaintiff did not file a motion to stay the deposition pending his motion for 

protective order. Although Plaintiff asserts that he wanted to wait for the Court’s ruling on 

his motion to appoint counsel, that reasoning does not justify his failure to appear at the 

deposition. See 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.”). 

Subsequently, the Court found good cause to set a discovery dispute hearing and allow 

Plaintiff an opportunity to argue why sanctions were not an appropriate response for his 
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failure to appear. To add insult to injury, Plaintiff failed to appear for that hearing.1(Doc. 

70) The Court finds that Plaintiff’s behavior is egregious, and therefore, the fourth factor 

favors dismissal. 

Alternatively, even if the Court found that this factor weighed against dismissal, “it is 

not sufficient to outweigh the other four factors, which in this case support dismissal.” U.S. 

Postal Serv., 833 F.2d at 133 n.2. 

D. Factor Five: Judgment on the Merits

Generally, the last factor weighs against dismissal. See Calloway, 651 Fed.Appx. at 

640. However, the Court finds that the public policy of this factor is hindered when a party 

attempts to prevent necessary discovery. Therefore, in this unique instance, the Court finds 

that the last factor weighs in favor of dismissal because Plaintiff is impeding meritorious 

evidence from being discovered and used in this case. In this way, judgment on the merits 

would be impossible. Accordingly,

IT IS ORDERED that the case shall be dismissed with prejudice. The Clerk’s 

Office shall terminate the case accordingly. 

Dated this 27th day of November, 2019.

Honorable Steven P. Logan

United States District Judge

1 As a result of Plaintiff’s failure to appear at the deposition, the Court imposed 

sanctions in the amount of $500. (Doc. 70)