Feamster v. Gaco Western, LLC

Filing 148

ORDER by Judge Haywood S. Gilliam, Jr. DENYING GACO WESTERN LLCS 143 MOTION TO DISMISS. This Order TERMINATES AS MOOT Docket No. 146 . (ndr, COURT STAFF) (Filed on 10/28/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT SCOTT FEAMSTER,
Plaintiff,

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v.

ORDER DENYING GACO WESTERN
LLC’S MOTION TO DISMISS
Re: Dkt. No. 143

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GACO WESTERN, LLC,

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United States District Court
Northern District of California

Case No. 18-cv-01327-HSG

Defendant.

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Pending before the Court is Defendant’s motion to dismiss filed on October 18, 2021. Dkt.

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No. 143. Defendant moves under Federal Rule of Civil Procedure 37 to dismiss Plaintiff’s case in

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its entirety, contending that Plaintiff failed to appear for deposition. Id. Defendant also filed an

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administrative motion seeking to advance the hearing for the motion to dismiss to a date before the

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trial starts on December 13, 2021. See Dkt. No. 146. Plaintiff filed an opposition in which he

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asks the Court to deny Defendant’s motion to dismiss and administrative motion. See Dkt. No.

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147. The Court finds this matter appropriate for disposition without oral argument and the matter

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is deemed submitted. See Civil L.R. 7-1(b).

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Under Rule 37(d), the Court “may” impose sanctions if “a party . . . fails, after being

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served with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A).

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Any sanctions imposed must be “just.” Fed. R. Civ. P. 37(b)(2)(A). In considering whether a

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dismissal is appropriate as a Rule 37 sanction, the Ninth Circuit has identified five factors to be

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considered: “(1) the public's interest in expeditious resolution of litigation, (2) the court’s need to

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manage its dockets, (3) the risk of prejudice to the party seeking sanctions, (4) the public policy

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favoring disposition of cases on their merits, and (5) the availability of less drastic sanctions.”

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Hyde & Drath v. Baker, 24 F.3d 1162, 1166 (9th Cir. 1994) (citing Wanderer v. Johnston, 910

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F.2d 652, 656 (9th Cir. 1990)).
In this case, factor (1) weighs against dismissal, in that the case will be resolved soon at a

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trial which will begin on December 13. Factor (2) weighs against dismissal for the same reason.

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Factor (3) nominally could weigh in favor of dismissal, in that Defendant has lost the opportunity

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to depose Plaintiff prior to trial. But critically, this is a problem of Defendant’s own creation. The

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discovery deadline in this case was August 2, 2021. Dkt. No. 123. That deadline has long since

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passed. Defendant was responsible for conducting discovery prior to the deadline and raising any

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issues with the Court in a timely manner. On April 13, 2021, the Court specifically directed

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Defendant to raise any discovery issues before Judge Beeler early enough for them to be resolved

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in time to meet the discovery deadline. Id. But Defendant failed to raise the problems of which it

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United States District Court
Northern District of California

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now complains with either Judge Beeler or this Court before the discovery deadline, or seek an

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extension of the deadline. The fact that Defendant filed this motion over two months after the

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close of discovery substantially undermines its claim of prejudice. And factors (4) and (5)

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strongly weigh against dismissal, especially where Defendant seeks only the most drastic sanction

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available. Accordingly, dismissal under Rule 37 is wholly unwarranted.

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Defendant’s motion is DENIED. The Court also TERMINATES AS MOOT
Defendant’s pending administrative motion, Dkt. No. 146.
IT IS SO ORDERED.
Dated: 10/28/2021
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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