Frustere v. Wells Fargo Bank, N.A. et al

Filing 98

ORDER GRANTING DEFENDANT'S 84 MOTION FOR SANCTIONS; ORDER OF DISMISSAL. The above-titled action is dismissed with prejudice and defendant is awarded attorney's fees in the amount of $2037. Signed by Judge Maxine M. Chesney on June 21, 2013. (mmclc2S, COURT STAFF) (Filed on 6/21/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

For the Northern District of California

United States District Court

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RICHARD A. FRUSTERE,

No. 11-6395 MMC

Plaintiff,

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ORDER GRANTING DEFENDANT’S
MOTION FOR SANCTIONS; ORDER OF
DISMISSAL

v.
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WELLS FARGO BANK, N.A., et al.,
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Defendants.

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Before the Court is defendant’s Motion for Sanctions, filed May 10, 2013, by which

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defendant seeks dismissal of the above-titled action as well as specified attorney’s fees.

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The matter came on regularly for hearing June 21, 2013 at 9:00 a.m. Jason M. Richardson

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of Severson & Werson appeared on behalf of defendant. Plaintiff did not appear. Rather,

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plaintiff’s opposition, which was to be filed no later than May 24, 2013, was filed at

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12:48 a.m. on the morning of the hearing, along with a request to appear telephonically,

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which request, by separate order, the Court has denied.
The Court having read and considered the parties’ respective written submissions,

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including plaintiff’s untimely opposition, and having considered the arguments of

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defendant’s counsel at the hearing, now, for the reasons stated on the record at the

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hearing, rules as follows.

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//

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1. The Court, having weighed the factors relevant thereto, hereby GRANTS

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defendant’s motion to dismiss. See Henry v. Gill Indus., Inc., 983 F.2d 943, 948 (9th Cir.

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1993) (setting forth factors court must consider in granting dismissal as sanction). As set

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forth in detail on the record of the above-referenced hearing, no alternative sanction

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appears practicable, plaintiff having willfully and without good cause failed to comply with

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reasonable discovery requests, repeatedly disregarded the Court’s orders pertaining to the

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filing of documents, and repeatedly failed to appear at scheduled court proceedings without

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timely or adequate excuse, all to the prejudice of defendant and the Court’s ability to

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manage its docket.

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2. Having considered Rule 37 of the Federal Rules of Civil Procedure, the Court

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hereby GRANTS defendant’s motion for attorney’s fees. See Fed. R. Civ. P. 37 (providing

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procedures governing failure to cooperate in discovery); Fed. R. Civ. P. 37(d)(3) (providing

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“court must require the party failing to [comply with discovery requests] . . . to pay the

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reasonable expenses, including attorney’s fees, caused by the failure, unless the failure

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was substantially justified or other circumstances make an award of expenses unjust”). As

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set forth above, the Court has found plaintiff’s failure to comply was not justified; the Court

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further finds no other circumstances counsel against the relief requested. Additionally, the

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Court finds the amount sought reflects a reasonable hourly rate and a reasonable number

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of hours expended in the preparation of the subject discovery documents and in drafting

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the instant motion and, consequently, that such fees were reasonably incurred.

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Accordingly, the above-titled action is hereby DISMISSED with prejudice and
defendant is hereby awarded attorney’s fees in the amount of $2037.
IT IS SO ORDERED.

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Dated: June 21, 2013
MAXINE M. CHESNEY
United States District Judge

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