Xcentric Ventures LLC v. Karsen Limited et al

Filing 72

ORDER GRANTING defendant's motion to withdraw 70 . ORDER DENYING defendant's motion to compel responses to written discovery requests as moot 56 . ORDER GRANTING plaintiff's motions to strike answer 50 and 71 and STRIKING defendant's answer 19 . ORDER DENYING plaintiff's motion for partial summary judgment as moot 65 . All pending hearings are vacated. The clerk is directed to enter default. Signed by Judge Frederick J Martone on 10/11/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Xcentric Ventures, LLC,
Plaintiff,

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vs.

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Karsen, Ltd., et al.,
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Defendants.
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No. CV 11-01055-PHX-FJM
ORDER

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The court has before it plaintiff's motion to strike answer of defendant Eugene Selihov

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(doc. 50), defendant's response (doc. 52), plaintiff's reply (doc. 53), defendant's motion to

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compel responses to written discovery requests (doc. 56), plaintiff's response (doc. 62),

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defendant's reply (doc. 66), plaintiff's motion for partial summary judgment (doc. 65),

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defendant's motion to withdraw his motion to compel (doc. 70), and plaintiff's second motion

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to strike answer (doc. 71).

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On September 19, 2012, we warned Selihov of the possibility of striking his answer

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if he refused to comply with discovery (doc. 61). We also stated in our order filed September

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27, 2012 that "Selihov shall appear for his deposition no later than October 8, 2012, or else

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default shall be entered." (Doc. 67). Selihov informs us now that he refuses to attend his

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deposition and "understands that the Court will enter a default against him as a result of his

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decision" (doc. 70).

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We have the power to impose default as a sanction for failing to comply with a court

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order. Rule 37(b)(2)(A)(iii), Fed. R. Civ. P. "Where the sanction results in default, the

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sanctioned party's violations must be due to the willfulness, bad faith, or fault of the party."

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Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1169 (9th Cir. 2012) (quotation omitted).

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Defendant intentionally and in bad faith chose to violate our discovery orders. He admits in

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his motion to withdraw that he is refusing to attend his deposition and offers no excuse for

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his conduct. Although he represented to the court that he would cooperate with plaintiff in

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discovery and would answer discovery requests, he has refused to turn over documents. He

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told the court that he had complied with our order and a discovery request was therefore

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moot, but this was false (doc. 61). He has continually and purposely engaged in discovery

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misconduct and violated court orders.

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Before striking a pleading and declaring default, we must consider: "(1) the public's

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interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3)

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the risk of prejudice to the other party; (4) the public policy favoring the disposition of cases

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on their merits; and (5) the availability of less drastic sanctions." Dreith v. Nu Image, Inc.,

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648 F.3d 779, 788 (9th Cir. 2011).

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The public's interest in expeditious resolution is high here and best served by entering

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a default. In one of the busiest districts in the country, the court has been forced to spend its

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time resolving discovery disputes over minor issues. Many needless motions have been filed,

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as the parties partially resolved some disagreements while their motions were pending.

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Defendant's obstreperous, uncooperative behavior has wasted the court's time and interfered

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with our docket management. His bad faith conduct during discovery has led to multiple

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motions unrelated to the merits of the case. Defendant's actions delayed resolution of this

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case and made it difficult for plaintiff to prepare for trial. Public policy favors disposing of

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cases on the merits, but defendant's behavior has been designed to ensure that a fair trial on

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the merits is impossible.

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We have considered less drastic sanctions and find that they would be inappropriate

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here. See Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116-17 (9th Cir. 2004).
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We imposed lesser sanctions in previous orders, ordering defendant to appear for his

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deposition and produce documents (docs. 47, 61, 67). We also allowed plaintiff to file a

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motion for attorneys' fees as a sanction for defendant's failure to appear at his first scheduled

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deposition (doc. 61). Lesser sanctions have not worked. Defendant continues to willfully

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and defiantly disobey court orders. We specifically warned defendant that default was an

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option if he failed to appear for his deposition. He clearly understands the outcome of his

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choice.

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IT IS ORDERED GRANTING defendant's motion to withdraw (doc. 70).

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IT IS ORDERED DENYING defendant's motion to compel responses to written

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discovery requests as moot (doc. 56).
IT IS FURTHER ORDERED GRANTING plaintiff's motions to strike answer
(docs. 50 and 71) and STRIKING defendant's answer (doc. 19).
IT IS FURTHER ORDERED DENYING plaintiff's motion for partial summary
judgment as moot (doc. 65).

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All pending hearings are vacated. The clerk is directed to enter default.

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DATED this 11th day of October, 2012.

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