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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?