FINDINGS AND RECOMMENDATIONS

DENNIS M. COTA, Magistrate Judge.

Plaintiff, who is proceeding with retained counsel, brings this civil action alleging civil rights violations. Pending before the court is defendants' motion for terminating sanctions (ECF No. 20). A hearing was held on April 3, 2019, at 10:00 a.m. before the undersigned in Redding, California. Dave King, Esq., appeared for defendants. Ralph Rios, Esq., appeared for plaintiff. A continued hearing was held on April 19, 2019, at 11:00 a.m., also before the undersigned in Redding, California. Dave King, Esq., and Tracey Werner, Esq., appeared for defendants. Ralph Rios, Esq., appeared for plaintiff. After considering the arguments presented by counsel, the matter was submitted.

I. BACKGROUND

On October 9, 2018, defendants filed a motion to compel. See ECF No. 9. Plaintiff failed to participate in the mandated meet-and-confer process and failed to appear at the hearing on defendants' motion on November 14, 2018. On November 20, 2018, the court issued an order granting defendants' unopposed motion to compel and ordered plaintiff to provide verified responses to discovery requests without objection on or before November 26, 2018. See ECF No. 17. The court also directed plaintiff's counsel to appear before the court to show cause why sanctions should not be imposed. See id. Following an order to show cause hearing on December 20, 2019, the court issued a further order awarding defendants sanctions in the amount of $3,216.00 payable within 14 days of the court's order. See ECF No. 19 (December 20, 2018, order). Discovery closed on February 1, 2019. See ECF No. 8.

According to defendants, plaintiff served supplemental responses to discovery requests (interrogatories and requests for production of documents) on November 26, 2018. See ECF No. 20-2 (Werner declaration). On November 27, 2018, defendants' counsel sent plaintiff's counsel an email detailing continued problems with plaintiff's discovery responses. See id. at Exhibit C. After plaintiff's counsel failed to respond, defendants' counsel sent another email on December 19, 2018, detailing the same problems with the supplemental responses. See id. at Exhibit D. Again, plaintiff's counsel did not respond. Defendants' counsel sent a third email regarding deficient discovery responses on December 28, 2018. See id. at Exhibit E. After several attempts to coordinate schedules, counsel finally met and conferred on January 10, 2019. At that meeting, plaintiff's counsel agreed to pay the unpaid sanctions award, produce documents, and serve supplemental responses. See ECF No. 20-2 (Werner declaration). Defendants state they have still not received any responsive documents or supplemental responses, in violation of the court's prior orders.

As to the monetary sanctions the court ordered plaintiff's counsel to pay within 14 days of the December 20, 2018, order, at the initial hearing on the instant motion held on April 3, 2019, counsel represented to the court that he had that same day instructed his office to deliver a check to defendants' counsel. The sanctions, however, were not paid until the day of the continued hearing on April 19, 2019, at which time plaintiff's counsel handed defendants' counsel a check.

II. DISCUSSION

Defendants now seek terminating sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) for plaintiff's failure to comply with the November 20, 2018, and December 20, 2018, orders. Alternatively, defendants seek additional monetary sanctions for reasonable attorney's fees and costs associated with the ongoing discovery dispute.

In opposition, plaintiff's counsel states he has complied with the court's orders, though he admits he failed to pay the ordered monetary sanctions within the time specified in the court's order. In his opposition to defendants' motion, plaintiff's counsel provides no explanation for his failure to pay the monetary sanctions. At the continued hearing, plaintiff's counsel explained his failure to timely pay the sanctions award by telling the court he has no control over his law firm's processing of checks. As to discovery, plaintiff's counsel states that he has complied with the court's November 20, 2018, order because he produced the outstanding discovery. Plaintiff's counsel does not address the deficiencies in his written responses identified in defendants' counsel's emails, nor does counsel provide the court with copies of his discovery responses. Further, while plaintiff's counsel repeatedly represented to the court that he has provided defendants' counsel will all requested documents, plaintiff's counsel was not able to identify a single document allegedly produced and defendants' counsel stated unequivocally that they have not to date received a single responsive document from plaintiff's counsel.

The court finds plaintiff's counsel failed to comply with either the November 20, 2018, or December 20, 2018, orders. Therefore, a further sanction is appropriate. The court must weigh five factors before imposing the harsh sanction of dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to follow local rules, see Ghazali, 46 F.3d at 53, failure to comply with an order to file an amended complaint, see Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992), failure to inform the district court and parties of a change of address pursuant to local rules, see Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam), failure to appear at trial, see Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996), and discovery abuses, see Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir. 1993).

Having considered these factors, the court finds dismissal is an appropriate sanction. As to the first and fourth factors, the public's interest in expeditious resolution of this matter on the merits is thwarted by plaintiff's counsel's failure to meaningfully participate in discovery and by violation of the court's orders. As to the second factor, counsel's failure to provide discovery and move this case forward to trial thwarts the court's ability to manage its caseload and provide for the efficient administration of justice. As to the third factor, plaintiff's counsel's disobedience of the court's orders to provide discovery prejudices defendants' ability to present a defense, particularly given that discover has now closed in this action. Finally, as to the fifth factor, it is clear in this case that imposition of less drastic sanctions, such as a monetary sanction, will not produce compliance from plaintiff's counsel.

III. CONCLUSION

Based on the foregoing, the undersigned recommends that:

1. Defendants' motion for terminating sanctions (ECF No. 20) be granted;

2. Defendants' alternative request for additional monetary sanctions be denied; and

3. This action be dismissed, without prejudice, for failure to comply with courts orders.

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)(1). Within 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).