Ottovich v. City of Fremont et al

Filing 105

ORDER DENYING DEFENDANTS MOTION TO DISMISS. Signed by Judge Maxine M. Chesney on January 9, 2013. (mmclc2, COURT STAFF) (Filed on 1/9/2013)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9
For the Northern District of California

United States District Court

10
11
12
13
14

ORDER DENYING DEFENDANTS’
MOTION TO DISMISS

Plaintiffs,
v.
CITY OF FREMONT, et al.,
Defendants.

15
16

No. C 09-4181 MMC

MARK OTTOVICH, et al.,

/

Before the Court is defendants’ motion, filed December 19, 2012, to dismiss the

17

above-titled action based on plaintiff’s failure to pay court-ordered sanctions. No opposition

18

has been filed. Having read and considered the papers submitted in support of the motion,

19

the Court deems the motion appropriate for decision on the moving papers, hereby

20

VACATES the hearing scheduled for March 8, 2013, and rules as follows.

21

On November 16, 2012, the Court issued an order directing plaintiff to appear at a

22

deposition set by the Court, pursuant to Federal Rule of Civil Procedure 37(a), and granting

23

sanctions to defendants in the form of attorneys’ fees, pursuant to Rule 37(d). (See Order,

24

filed Nov. 16, 2012.) To date, no payment of the monetary sanctions has been made.

25

(See Decl. of Arlene Helfrich ¶ 13.)

26

Defendants, citing Rule 37(b), argue that the Court may issue an order “dismissing

27

the action or proceeding in whole or in part,” see Fed. R. Civ. Pro. 37(b)(2)(A)(v), where,

28

according to defendants, “a party fails to obey an order granted under Rule 37(a),” (see

1

Mot. at 3:11-20). The language on which defendants rely, however, when read in context,

2

does not support defendants’ position. Rather, the rule provides for such sanctions only if a

3

party “fails to obey an order to provide or permit discovery.” See Fed. R. Civ. Pro.

4

37(b)(2)(A). A failure to pay court-ordered sanctions is not a failure to “provide or permit

5

discovery.”

6

Accordingly, defendant’s motion is hereby DENIED, without prejudice to defendants

7

filing a motion to dismiss in the event plaintiff fails to appear at his court-ordered deposition

8

on January 23, 2013.

9
10

IT IS SO ORDERED.
Dated: January 9, 2013
MAXINE M. CHESNEY
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2