In Holt v. Houston Methodist Sugar Land Hospital, No. H-19-5464 (S.D. Texas Houston Division), December 31, 2020, the court dismissed an Americans With Disabilities Act discrimination case because the pro se plaintiff had developed a pattern of refusing to comply with discovery and court orders.

The explanation:

“Plaintiff has repeatedly failed to comply with Orders issued by the Magistrate Judge, including orders to appear for conferences. When ordered on October 3, 2019, not to file additional documents until the Court ruled on Defendant’s 2019 Motion to Dismiss, Plaintiff filed four additional documents on October 9, 2019. Plaintiff failed to appear as ordered for conferences on May 8, 2020, and on July 27, 2020.

Plaintiff also refused to participate in discovery. She failed to respond to written discovery and failed to appear for her deposition on June 24, 2020. Her only explanation for her refusal to comply with her discovery obligations was that she believed the Court had ruled in her favor on the ADA claims and that depositions occur at the beginning of a case. Even after the Magistrate Judge ordered her to comply [Doc. # 125], Plaintiff again refused to respond to written discovery and failed without explanation to appear for her deposition on September 24, 2020.

Between the February 28, 2020, Memorandum and Order ruling on Defendant’s 2019 Motion to Dismiss and December 29, 2020, when Plaintiff filed her “Motion to Deny Defendant Motion to Dismiss,” Plaintiff intentionally refused to participate in the prosecution of this lawsuit. Plaintiff’s refusal persisted notwithstanding at least four orders [Docs. # 119, # 123, # 125, and # 128] for her to participate in discovery, respond to an issue raised by Defendant, or appear for a conference. Plaintiff’s refusal to comply with court orders and participate in discovery persisted notwithstanding at least two orders [Docs. # 125 and # 128] warning her that failure to participate in discovery could result in dismissal of this lawsuit.

In her “Motion to Deny Defendant Motion to Dismiss,” Plaintiff notes that in the Magistrate Judge’s Order [Doc. # 100] entered October 3, 2019, Plaintiff was precluded from calling or appearing at Defendant’s place of business, at defense counsel’s office, or at the Court unless there was a hearing scheduled. This in no way explains or excuses Plaintiff’s failure to comply with Court orders, including the Order [Doc. # 125] requiring Plaintiff to appear for her deposition, or to respond to Defendant’s written discovery requests. Moreover, Plaintiff’s explanation for refusing to appear for her June 24, 2020 deposition was not that she believed her appearance at counsel’s office was precluded by the Magistrate Judge’s October 3, 2019 Order. Instead, Plaintiff stated that she would not appear for her deposition because oral depositions occur at the beginning of a case and she would “not be starting this case over.”

Plaintiff also cites the statement in the October 3, 2019 Order that discovery deadlines were vacated and a new scheduling conference would be held after the Court ruled on the 2019 Motion to Dismiss. It is clear, however, that the referenced scheduling conference occurred on May 8, 2020, but Plaintiff chose not to attend.

Plaintiff relies also on the statement in the October 3, 2019 Order that neither party could file anything in the case until the Court ruled on the 2019 Motion to Dismiss. The Court ruled on the 2019 Motion to Dismiss in its Memorandum and Order [Doc. # 112] issued February 28, 2020. After that date, there was no prohibition on Plaintiff filing additional matters. Yet after that date, until December 29, 2020, Plaintiff willfully refused to file anything, to participate in discovery, or to appear at conferences held by the Magistrate Judge.

In this case, there is a clear record of Plaintiff intentionally and steadfastly refusing to participate in discovery, to appear for conferences with the Magistrate Judge, and to prosecute her lawsuit in any way for a 10-month period. This intentional delay was caused by Plaintiff’s own conduct. As a result, the Court finds without reservation that sanctions are warranted.

The Court finds that there is no lesser sanction that would induce Plaintiff to comply with Court orders and with her discovery obligations. Plaintiff is pro se and filed this lawsuit in February 2019 challenging the termination of her employment in 2017. There is nothing in the record to suggest that Plaintiff has funds to pay a monetary sanction. Court orders and repeated warnings that failure to comply could result in dismissal of this lawsuit have not persuaded Plaintiff to fulfill her discovery obligations.

Although the Court recognizes that dismissal is a severe sanction, Plaintiff’s conduct in this case has been intentional and persistent. The case was filed almost two years ago. Yet, because of Plaintiff’s refusal to prosecute her lawsuit and comply with Court orders and discovery obligations, basic discovery has not begun. Indeed, to date Plaintiff has not responded to Defendant’s written discovery requests or appeared for her deposition. Dismissal of this case, after repeated warnings, is warranted.”

Comment: courts will tolerate a great many faults by pro se litigants, but, eventually, everyone has to comply with the rules.

The title of this post is a bit complex. I apologize for that. But the topic is important. Sometimes, a party brings a case to federal court and the court later determines that it lacks subject matter jurisdiction. The case is then dismissed for lack of jurisdiction. What happens, however, when there is a sanctions motion pursuant to 28 U.S.C. §1927? Joining other circuits that have considered the issue, the 11th Circuit held that the district courts do indeed have jurisdiction to decide sanctions motions. This is important as it gives the court the power to discipline conduct and award sanctions even if there was no jurisdiction over the entire case. Obviously, I think the opinion is correct and well-reasoned.

The reasoning:

In the world of jurisdiction, there’s an important distinction between the underlying case or controversy and certain “collateral” matters. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). The former includes the merits of the dispute as well as many procedural questions. The latter includes a limited set of issues “collateral to the merits” of the case. Willy v. Coastal Corp., 503 U.S. 131, 137, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992). Think things like “the imposition of costs, attorney’s fees, and contempt sanctions.” Cooter & Gell, 496 U.S. at 396, 110 S.Ct. 2447.

Although we call these issues “collateral,” that doesn’t make them any less important. Many involve the power to enforce compliance with the rules and standards that keep the judiciary running smoothly. See Willy, 503 U.S. at 137, 139, 112 S.Ct. 1076. Without them, “abuses of the judicial system” would go unchecked, “burdening courts and individuals alike with needless expense and delay.” Cooter & Gell, 496 U.S. at 397-98, 110 S.Ct. 2447. And that’s not just a matter of procedure. Because justice delayed is justice denied, these powers ensure that justice is done.

The distinction between the underlying case and collateral issues is important when it comes to jurisdiction because it affects a court’s power to decide an issue. Once a court loses jurisdiction over a case, it may no longer decide issues arising out of that case. See, e.g., Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127, 2 L.Ed. 229 (1804). But it can still decide certain “collateral” issues related to the case. See Cooter & Gell, 496 U.S. at 395, 110 S.Ct. 2447.

Here, all agree that the district court lacked subject-matter jurisdiction over the case. So the question for us is whether Irish’s motion for sanctions under the district court’s inherent powers or § 1927 was a part of the underlying case (which would mean that the court lacked the power to rule on the motion) or a “collateral” issue (which would mean that it had the power to do so).

Fortunately, we don’t approach this question on a blank slate. The Supreme Court has told us that sanctions under Federal Rule of Civil Procedure 11 are a “collateral” issue and thus a court may decide a Rule 11 sanctions motion even if it lacks jurisdiction over the underlying case. See Willy, 503 U.S. at 137-39, 112 S.Ct. 1076. The decision reasoned that exercising jurisdiction in this context was both constitutionally permissible and practically important.

On the first point, the Court explained that ruling on a Rule 11 motion “implicates no constitutional concern because it does not signify a district court’s assessment of the . . . legal merits” of the case. Id. at 138, 112 S.Ct. 1076 (cleaned up). Instead, it concerns “a collateral issue: whether the attorney has abused the judicial process.” Id. (cleaned up). And because a district court does not have to decide the merits to rule on a Rule 11 motion, it does not improperly consider the “`case or controversy’ over which it lacks jurisdiction.” Id.

On the second point, the Court reasoned that exercising jurisdiction over a Rule 11 motion is practically important because “[t]he interest in having rules of 1310*1310procedure obeyed” outlives the merits of a case. Id. at 139, 112 S.Ct. 1076. This makes sense. The need to deter those who might violate the rules does not rise or fall with any particular case. It is an ever-present need of all courts. Simply put, district courts need the power to rule on these issues to ensure “the maintenance of orderly procedure.” Id. at 137, 112 S.Ct. 1076.

Both these points apply equally to sanctions under a court’s inherent powers or § 1927. These sanctions, like Rule 11 sanctions, do not require a court to rule on the merits of the underlying case. Our analysis in the next Part makes this clear. And the purpose of the sanctions outlasts the end of the case. Otherwise, parties who abuse the judicial procedures could get off scot-free anytime it turned out that the district court lacked subject-matter jurisdiction.

For good reason, then, all of our sister circuits to have faced this question have recognized jurisdiction in this context. See, e.g., Ratliff v. Stewart, 508 F.3d 225, 231 n.7 (5th Cir. 2007); Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642, 645 (6th Cir. 2006); In re Jaritz Indus., 151 F.3d 93, 96-97 (3d Cir. 1998); see also Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 137-38 (4th Cir. 2020); Zerger & Mauer LLP v. City of Greenwood, 751 F.3d 928, 931 (8th Cir. 2014).

Today, we join them and hold that a district court may address a sanctions motion based on its inherent powers or § 1927 even if it lacks jurisdiction over the underlying case.

Hyde v. Irish, 962 F.3d 1306 (11th Cir. 2020).

Comment: the court affirmed the denial of the sanctions motion.

In Markus v. Rozhkov, 615 B.R. 679 (S.D. NY. 2020) the United States District Court (on an appeal from the bankruptcy court) upheld a sanction award against one of the attorneys in a contested bankruptcy matter. The court held that Rule 37 sanctions do indeed apply in Bankruptcy court.

The discussion as to whether Rule 37 applies in contested bankruptcy matters:

Worms argues that the Sanctions Order is invalid because it was predicated on Rule 37, which, under his interpretation, does not ever apply to Chapter 15 proceedings. The FR responds that Rule 37 sanctions are available in Chapter 15 proceedings. Although the contours of Worms’s argument are less than pellucid, the Court will attempt to map out his reasoning in some detail. Importantly, this section addresses the arguments about whether Rule 37 can apply in Chapter 15 cases as a general matter; it does not discuss, as later sections of this opinion will, whether sanctions under Rule 37 were 699*699 specifically appropriate in the context of this Chapter 15 proceeding.

Worms’s argument is essentially two-fold. First, he asserts that he cannot have been held liable under Rule 37 because Bankruptcy Rule 7037 states that Rule 37 “applies in adversary proceedings” and the Chapter 15 proceedings were not “adversary proceedings” at the time the Bankruptcy Court imposed Rule 37 liability. That logic holds, as far as it goes, but it does not go very far. Bankruptcy Rule 7037 does not state that the only time Rule 37 applies to bankruptcy is in adversary proceedings. And Bankruptcy Rule 9014 forecloses such a reading. Bankruptcy Rule 9014, titled “Contested Matters,” states under subsection (c) that, “[e]xcept as otherwise provided in this rule, and unless the court directs otherwise, [Bankruptcy Rule 7037] shall apply.” Accordingly, by the plain terms of Bankruptcy Rule 9014, Bankruptcy Rule 7037 (and thereby, Rule 37) does not only apply to adversary proceedings. Indeed, Worms acknowledges that Bankruptcy Rule 9014(c) makes Rule 37 applicable to some contested matters.

But, Worms argues, that universe of contested matters cannot include any contested matters arising in Chapter 15 proceedings because Bankruptcy Rule 9014(b) provides that a motion under Bankruptcy Rule 9014 “shall be served in the manner provided for service of a summons and complaint by Rule 7004,” and Chapter 15 notices are not served in that manner. It is undisputed that Chapter 15 proceedings are not initiated “in the manner provided for service of a summons and complaint by [Bankruptcy] Rule 7004.”^[9] If Bankruptcy Rule 9014 made itself applicable only when Bankruptcy Rule 7004 service is required, then Worms might have a winning argument. But it does not.

Bankruptcy Rule 9014(a)-(b) provides: “In a contested matter not otherwise governed by these rules, relief shall be requested by motion … [and the] motion shall be served in the manner provided for service of a summons and complaint by Rule 7004.” See also 10 Collier on Bankruptcy P. 9014.02 (16th ed. 2019) (“As acknowledged (`not otherwise governed by these rules’) by the rule, however, there are instances in which a contested matter is initiated by some other means.”). Chapter 15 proceedings are “otherwise governed by these rules”—specifically, Chapter 15 proceedings are governed by Bankruptcy Rule 2002(q) (which provides a substitute for Rule 7004 service).

Therefore, Worms is incorrect that Bankruptcy Rule 9014 is applicable only where Bankruptcy Rule 7004 service is required. Bankruptcy Rule 9014 (and, accordingly, Bankruptcy Rule 7037) may apply to contested matters “otherwise governed by these rules.” In sum, Bankruptcy Rule 9014 makes Rule 37 (via Bankruptcy Rule 7037) applicable to contested matters in Chapter 15 proceedings.

Bankruptcy Rule 9020 is the final blow that topples Worms’s house of cards. Under that rule, “Bankruptcy Rule 9014 governs a motion for an order of contempt made by … a party in interest.” By operation of the transitive principle, Rule 37 therefore applies to Chapter 15 contested matters when a party in interest moves for an order of contempt. That is precisely the situation here.

As outlined above, Worms’s argument that Federal Rule of Civil Procedure 37 does not ever apply to Chapter 15 proceedings cannot survive the plain text of the interlocking Bankruptcy Rules. That could be the end of the analysis. It is worth 700*700 noting, however, that precedent and pragmatism are also against him.

On the former, courts frequently recognize that Chapter 15 proceedings can involve contested matters covered by Bankruptcy Rule 9014. See In re Worldwide Educ. Servs., Inc., 494 B.R. 494, 499 n.1 (Bankr. C.D. Cal. 2013) (“Since a petition for recognition is not defined as an adversary proceeding under Rule 7001, it … should be treated as [a] contested matte[r] under Rule 9014.”); In re Basis Yield Alpha Fund (Master), 381 B.R. 37, 43 n.14 (Bankr. S.D.N.Y. 2008) (applying Bankruptcy Rule 9014 to Chapter 15 proceeding); In re Japan Airlines Corp., 425 B.R. 732, 732 n.2 (Bankr. S.D.N.Y. 2010) (same); In re Toft, 453 B.R. 186, 199 (Bankr. S.D.N.Y. 2011) (same); In re Compania Mexicana de Aviacion, S.A. de C.V., 2010 WL 10063842, at *1 n.1 (Bankr. S.D.N.Y. Nov. 8, 2010) (same).

And on the latter, Worms’s position would lead to the absurd result that bankruptcy courts handling Chapter 15 contested matters would lack Rule 37 recourse to enforce their orders. Rule 37 is intended to address discovery misconduct. That can occur as easily in contested matters under Chapter 15 as anywhere else. It would be wholly illogical for the rulemakers to have deprived bankruptcy courts of the Rule 37 toolkit in Chapter 15 contested matters. As demonstrated above, a plain reading of the rules demonstrate that the rulemakers had no such illogical intent.

Rule 37 is available in contested matters arising within Chapter 15 cases.^[

For other reasons, the court reversed the sanctions decision and remanded the case to the bankruptcy court. That discussion is too complicated for this blog.

The opinion is thoughtful and important. Every practitioner who is involved in a bankruptcy matter should be aware that Rule 37 does indeed apply.

Before my last post was written I had never heard of “reptile theory.” I found an excellent opinion (sadly unpublished) from 2017 that explains the theory in greater detail.

Defendant Costco Wholesale Corporation seeks to stop plaintiff’s counsel from making various statements to the jury during the upcoming trial. Uncoiling Costco’s motion, it appears to ask that I order Aidini’s counsel not to: (1) make any venomous remarks that might incite the jurors’ “primal” instincts to protect their offspring (what Costco calls the “reptile theory” of advocacy),^[1] (2) suggest that Costco is slinking from its responsibility by defending this case, and (3) comment on the witnesses’ credibility.

Aldini v. Costco Wholesale, Inc., 2:15-cv-505 (D. Nevada 2017)(Andrew Gordon, J.)

Once shed of its skin, Costco’s motion is little more than a request that I monitor Aidini’s counsel to ensure they stay within the strictures of the federal evidentiary and procedural rules. Of course, counsel must have an evidentiary or legal basis for any statements to the jury. And if some specific statements square with the evidence but also pose a risk of unfairly undermining the jury’s reason, I will balance those scales when the time comes.^[2] But I will not issue a blanket pretrial ruling based on nothing more than Costco’s suspicion that there are snakes lurking in the grass.

As to Costco’s request that Aidini’s counsel be barred from suggesting that the company is slithering from its responsibilities by defending this case, I cannot say at this point that this would be improper argument. Of course, argument is reserved for closings, not to be made during opening statements. And Costco is free to point out in its closing that it is entitled to defend itself like any other party.

Costco next requests that I prohibit Aidini’s counsel from suggesting that Costco’s witnesses speak with forked tongues or otherwise questioning their credibility. Again, there is no basis to issue such a ban at this time. Aidini’s counsel agree they will make comments about credibility only if founded in the evidence—and they are allowed to do that.

Similarly, Costco’s arguments about the reptilian theory fail. Federal courts have hissed at motions based on this theory that seek a broad prospective order untethered to any specific statements the other side will make.^[3] As Aidini points out, it may be permissible for him to argue that, under Nevada’s law of negligence, the jury should consider what a reasonable person in the community would do in Costco’s place.^[4] But Aidini’s counsel is prohibited from making statements that would place the jury in Aidini’s skin, or would otherwise violate the Golden Rule or any other applicable restriction on counsel’s arguments.^[5]

IT IS THEREFORE ORDERED that Costco’s motion in limine (ECF No. 48) is DENIED.

Comment: this opinion should be published. Protective Order Granted To Prevent “Reptile Theory” Questions

The case is Tenzer v. Hazel, 2:17-cv-00459 (D. Idaho). The Plaintiff filed some sort of employment lawsuit against the Defendant. The Defendants issued discovery requests, but the plaintiff did not answer them. Plaintiff ignored court orders to comply with those requests. Later, when Defendants moved for Rule 37 sanctions, plaintiff claimed that he had a health problem that prevented him from complying with discovery requests.

Between August 27, 2019, and October 23, 2019, the District repeatedly attempted to obtain discovery responses from Plaintiff Randall Tetzner.^[1] When such attempts were unsuccessful, the Court ultimately entered an Order Compelling Mr. Tetzner to respond to the District’s Interrogatories and Requests for Production by November 12, 2019. Dkt. 31. While Mr. Tetzner failed to produce any discovery, he notified counsel for the District, on the date his discovery was due, that he was having an invasive medical procedure. Counsel for the District requested more information regarding Mr. Tetzner’s health situation and the impact it would have on his ability to respond to discovery but did not receive any response. Although Mr. Tetzner did not file a motion with the Court to seek an extension, nor provide it with notice or any other information regarding his health condition, the Court, in an abundance of caution, gave Mr. Tetzner another extension of time and ordered him to respond to discovery by November 29, 2019, or face dismissal. Dkt. 32. Mr. Tetzner did not respond to the District’s discovery requests by November 29, 2019, and has yet to produce the requested discovery. Id.

On December 2, 2019, Mr. Tetzner notified the District’s counsel by email that he may need surgery and that his condition was life-threatening. The District’s counsel requested additional information but did not receive a reply. Nor has the District’s counsel received a reply to any of its emails in the last four months regarding Mr. Tetzner’s obligation to respond to discovery. Despite the Court’s November 1, 2019, and November 18, 2019, orders compelling him to produce discovery, Mr. Tetzner has never filed a motion for a protective order, or any other information regarding his health condition, with the Court.

The court found the 9th Circuit factors favored dismissal of the lawsuit.

Here, the Court already assessed the five Thompson Factors to determine whether case-dispositive sanctions were warranted, and found three of the five factors weighed in favor of dismissal. Dkt. 31, at 5-7 (finding the public policy favoring disposition of cases on their merits and the availability of less drastic sanctions weighed against dismissal). Because the Court had not ordered an alternative, less severe sanction at that time, the Court allowed Mr. Tetzner an additional ten days to respond to discovery, and then extended his response deadline another two weeks, sua sponte, upon Mr. Tetzner’s notice to the District’s counsel that he was suffering from health problems. As noted, Mr. Tetzner has never contacted the Court regarding his health condition, nor filed a motion to seek an extension or to request a protective order.

In light of Mr. Tetzner’s continued failure to respond to discovery despite two orders compelling him to do so, the Court finds that four of the five Ninth Circuit factors now weigh in favor of dismissal. Where, as here, a court order has been violated, the first and second factors support case-dispositive sanctions. Adriana Int’l Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990). Instead of considering the merits of this case, the Court must again address Mr. Tetzner’s failure to comply with his discovery obligations. Mr. Tetzner’s conduct thus impedes the expeditious resolution of this case and the Court’s ability to manage its docket. Malone v. United States Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987); Hyde & Drath, 24 F.3d 1162, 1166 (9th Cir. 1994).

Under the third factor, a party is prejudiced if the non-responding party’s conduct impairs the requesting party’s ability to go to trial or threatens to interfere with the rightful decision of the case. United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir. 1988). Because Mr. Tetzner has completely ignored both the District’s discovery requests and the Court’s orders compelling him to respond, the District is unable to defend against his case. The third factor thus supports dismissal. Adriana, 913 F.3d at 1412 (failure to produce documents as ordered is considered sufficient prejudice to warrant case-dispositive sanctions).

Although the fourth factor—the public policy favoring decisions on the merits— always weighs against dismissal or default, Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990), this policy “standing alone, is not sufficient to outweigh the other four factors.” Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006) (quoting Malone, 833 F.2d at 133 n. 2). Moreover, where, as here, a fair trial is potentially impossible due to a party’s failure to cooperate, the fourth factor should not be given much weight. Hyde & Drath, 24 F.3d at 1167.

Finally, the fifth factor requires the district court to consider alternate, less severe sanctions before entering a default judgment or ordering dismissal. The Court previously denied sanctions because it had not yet considered alternate, less severe sanctions, and entered an order compelling discovery. Now that both the Order compelling discovery and subsequent Order giving Mr. Tetzner an additional two-weeks to respond to the District’s discovery requests have both been ignored, the Court turns again to the fifth factor.

The Ninth Circuit requires a three-part test to determine whether a district court has properly considered the adequacy of less drastic sanctions: (1) whether the court implemented alternative sanctions before ordering default or dismissal; (2) whether the court warned the party of the possibility of default before ordering it; and (3) whether the court explicitly discussed the feasibility of less drastic sanctions and explained why they would be inappropriate. Malone, 833 F.2d at 130.

All three conditions are met in this case. The Court has already considered less severe sanctions by issuing two orders compelling discovery. Mr. Tetzner disregarded both orders. The Court has also twice warned Mr. Tetzner that failure to comply with its discovery orders could result in the dismissal of his case. Dkt. 31; Dkt. 32. Despite this, Mr. Tetzner failed to comply. Furthermore, if Mr. Tetzner was facing a serious or life-threatening medical condition, he should have simply notified the Court and provided supporting evidence. Ultimately, however, Mr. Tetzner failed to provide any medical information despite numerous opportunities to do so. In light of such conduct, it is clear that less drastic sanctions would be ineffective and will not provide the District with the discovery it needs to defend against Mr. Tetzner’s case. Where, as here, four of the five Ninth Circuit factors weigh in favor of case-dispositive sanctions, dismissal in warranted. Adriana, 913 F.2d at 1413. Although pro se, Mr. Tetzner “is expected to abide by the rules of the court in which he litigates.” Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir. 1986); Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“pro se litigants are bound by the rules of procedure.”).

Rule 37(d)(3) requires the Court to award attorney’s fees against a party who fails to respond to discovery unless the failure was substantially justified, or other circumstances make an award of expenses unjust. Indigency, standing alone, does not make an award of expenses or attorney’s fee unjust. Barker v. Hertz Corp., 2008 WL 2705152, at *8 (D. Ariz.). Mr. Tetzner has not offered any justification to the Court, let alone substantial justification, for his failure to comply with its discovery orders. Nevertheless, the Court concludes that Mr. Tetzner, who appears to be suffering from health problems and has been granted leave to proceed in forma pauperis, should not be required to pay fees and costs. Dkt. 20; see Elliott v. United Parcel Serv., Inc., 2009 WL 213004, at *2 (W. D. Wash. 2009) (holding “it would be unjust to require a pro se plaintiff to pay fees and costs for the depositions.”).

The court then dismissed the case. Had the Plaintiff come up with an affidavit showing that he was actually ill, the case would not have been dismissed.