Dzebic v. Roanoke Companies Group, Inc. et al

Filing 282

ORDER by Judge Hamilton granting 269 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 9/16/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HILMIJA DZEBIC,
Plaintiff,

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ORDER GRANTING MOTION
TO DISMISS

ROANOKE COMPANIES GROUP, INC.,
et al.,

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For the Northern District of California

United States District Court

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v.

No. C 10-2363 PJH

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Defendants.
_______________________________/
Before the court is the renewed motion of defendants Roanoke Companies Group,

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Inc., n/k/a BRTT, Inc. (“Roanoke”); Home Depot USA, Inc. (“Home Depot”); and Aerofil

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Technology, Inc. (“Aerofil”), to dismiss the above-entitled action pursuant to Federal Rule of

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Civil Procedure 37(b)(2). Plaintiff Hilmija Dzebic filed no opposition to the motion within the

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time allowed under Civil Local Rule 7-3.

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Defendants previously filed a motion to dismiss for failure to prosecute and as a

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Rule 37 sanction. On August 10, 2011, the court denied the motion, conditional upon

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plaintiff making his expert, M. Eric Gershwin, M.D. available for deposition by August 24,

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2011. The court advised that should plaintiff fail to make Dr. Gershwin available for

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deposition by that date, defendants could renew their motion for terminating sanctions, and

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that the motion would be granted.

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On August 29, 2011, defendants filed their renewed motion, accompanied by a

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declaration by counsel stating that plaintiff had failed to make Dr. Gershwin available for

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deposition, and further, that at no time since the issuance of the August 10, 2011 order had

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plaintiff made any attempt to contact defense counsel regarding the scheduling of the

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Gershwin deposition.

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In accordance with the court’s prior order of August 10, 2011, defendants’ motion to

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dismiss the claims asserted against them in the above-entitled action is GRANTED.

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However, final judgment cannot be entered because this court’s docket indicates that not

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all claims and parties have been dismissed. Cross-claims filed by Roanoke and by Ortec,

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Inc. (“Ortec”), remain in the case, as do claims filed by plaintiff against defendant

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Innovative Chemical Technologies, Inc. (“Innovative”).

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Accordingly, no later than September 23, 2011, Roanoke and Ortec shall file

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dismissals of the cross-claims, and Innovative shall file a motion to dismiss the claims

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asserted against it, or the court will set the case for a mandatory case management
conference.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: September 16, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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