Plaintiff Deported; Case Dismissed for Discovery Violations

Undocumented workers, illegal immigrants, whatever you call them they are able to file and pursue civil lawsuits. But what happens if the plaintiff is deported in the middle of a case?

Cuadras-Barraza v. Stringer, 2:13-cv-01627, 2014 U.S. Dist. LEXIS 180863 (D. Nev. Sept. 26, 2014) arose from a trucking accident. The facts made for entertaining reading but are irrelevant here. Plaintiff files personal injury lawsuit, but he is not lawfully in the country. He is deported. Wise & crafty defense counsel notices Plaintiff’s deposition and a Rule 35 examination. Each requires the Plaintiff to come to Las Vegas, something the Plaintiff is legally barred from doing. Plaintiff obviously fails to appear, permitting the defendant to then move to dismiss per Rule 37. What happened?

Here, given that Plaintiff Carlos Flores-Padilla is deported from the United States and has failed to attend his medical evaluation and deposition, he has caused delays in discovery and the expeditious resolution of the case, and this factor weighs in favor of sanctions. Plaintiff Flores-Padilla’s deportation has caused a halt in this case which hinders this court ability to manage its docket. This weighs in favor of dispositive sanctions. There is significant risk of prejudice to the Defendant with Plaintiff Flores-Padilla’s deportation. “[P]rejudice is presumed from an unreasonable delay, and the burden to show actual prejudice shifts to the party seeking the sanction only after the responding party has given a nonfrivolous excuse for the delay.” Hernandez v. City of El Monte, 138 F.3d 393, 400-01 (9th Cir.1998).

With Plaintiff’s deportation from this country, it is clear that less drastic sanctions are not available and default judgment is appropriate. … The public policy favors disposition of cases on their merits. The court recognizes, however, that Plaintiff Flores-Padilla’s deportation have interfered with the expeditious resolution of the case and has hindered Defendant’s ability to discover all the facts of the case, as such, sanctions are appropriate.

The Magistrate Judge recommended striking the complaint. The district court later adopted the recommendation in full.

Someone reading this is wondering “1) did defense counsel report plaintiff to ICE and have him deported? 2) If so, is that ethical?” 1) no idea; 2) I don’t know and leave it to legal ethicists for debate. The ABA published an article in May, 2012 related to this topic and it may be a good place to start.