Garvin et al v. Ramirez et al

Filing 217

ORDER (1) CONTINUING HEARING ON PLAINTIFFS' MOTION TO COMPEL THE DEPOSITION OF JESUS CHAVEZ and (2) REQUIRING JESUS CHAVEZ TO SHOW CAUSE WHY HE SHOULD NOT BE SANCTIONED. The Court CONTINUES Plaintiffs' motion to compel to December 9 at 10:00 a.m. The Court further ORDERS Chavez to appear in person before the Court on December 9, 2010 at 10:00 a.m. in Courtroom 2, Fifth Floor, United States District Court, 280 South First Street, San Jose, California to explain his actions to date and to show cause why the Court should not strike his answer or sanction him in some other manner. (hrllc1, COURT STAFF) (Filed on 12/3/2010)

Garvin et al v. Tran, et al

Doc. 217

1 2 3 4 5 6 7 8 9 10

** E-filed December 3, 2010 **

NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MARIA A. GARVIN, et al., v. Plaintiffs, No. C07-01571 HRL ORDER (1) CONTINUING HEARING ON PLAINTIFFS' MOTION TO COMPEL THE DEPOSITION OF JESUS CHAVEZ AND (2) REQUIRING JESUS CHAVEZ TO SHOW CAUSE WHY HE SHOULD NOT BE SANCTIONED [Re: Docket No. 211]

United States District Court

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

For the Northern District of California

LINDA TRAN, et al., Defendants. ____________________________________/

BACKGROUND Plaintiffs have been trying to take the deposition of defendant Jesus Chavez ("Chavez") for nearly two years. During that time, Plaintiffs properly noticed his deposition four times; Chavez purportedly was incarcerated for two of depositions (and so they were cancelled), but he simply failed to appear for the other two depositions. (Docket No. 212, ¶¶ 2-4, Exs. A & B; Docket No. 207, ¶ 2-6, Ex. A.) Plaintiffs now move the Court for an order compelling Chavez's deposition. (Docket No. 211 ("MTC").) Chavez filed an untimely opposition brief (which more closely resembles an unsworn declaration of his counsel than it does a brief) (Docket No. 213), and oral argument was heard on November 30, 2010.

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10

DISCUSSION Plaintiffs argue that Chavez should be compelled to show up for his deposition or default judgment should be entered against him. (MTC at 6-7.) Pursuant to Rule 30, a party may depose any other party without leave of court. FED. R. CIV. P. 30(a)(1). Chavez is a defendant in this action, so Plaintiffs have the right to depose him. Chavez's failure to attend his properly noticed deposition is indicative of his larger disregard for this action as a whole. At oral argument, his counsel represented that he had not communicated with Chavez for some time and acknowledged that Chavez does not appear to take seriously his obligations in this litigation. It is not surprising, then, that despite being ordered to do so, Chavez also failed to appear at the mandatory settlement conference held on August 4, 2010. (Docket Nos. 183 & 202.) In short, Chavez has repeatedly failed to cooperate with the discovery process in this action, has acted in violation of court order, and has shirked his responsibilities as a litigant in federal court. As such, the Court orders Chavez to appear in person before it on December 9, 2010 to explain his actions to date and to show cause why the Court should not strike his answer (Docket No. 82) or sanction him in some other manner. Should Chavez fail to appear in person on December 9 (or provide good cause for hearing the matter on a different date), the Court will deem his nonappearance as a further basis for sanctioning him. CONCLUSION Based on the foregoing, the Court CONTINUES Plaintiffs' motion to compel to December 9 at 10:00 a.m. The Court further ORDERS Chavez to appear in person before the Court on December 9, 2010 at 10:00 a.m. in Courtroom 2, Fifth Floor, United States District Court, 280 South First Street, San Jose, California to explain his actions to date and to show cause why the Court should not strike his answer or sanction him in some other manner.

United States District Court

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

For the Northern District of California

IT IS SO ORDERED. Dated: December 3, 2010 HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

2

1 2 3 4 5 6 7 8 9 10

C07-01571 HRL Notice will be electronically mailed to: Alisha Mei Yuk Louie Annette D. Kirkham Cindy Hamilton Jessica Lynn Fry Karen Rosenthal Kimberly Pederson Kyra Ann Kazantzis Leo B. Siegel Michael E. Stone Shawn Robert Parr William Cornelius Last , Jr William J. Goines [e-mail] [e-mail], [e-mail] [e-mail], [e-mail], [e-mail] [e-mail], [e-mail] [e-mail], [e-mail], [e-mail] [e-mail], [e-mail] [e-mail] [e-mail] [e-mail] [e-mail], [e-mail] [e-mail] [e-mail], [e-mail], [e-mail]

5:07-cv-01571-HRL Please see General Order 45 Section IX C.2 and D; Notice has NOT been electronically mailed to: Raya Ghajar 1101 Salerno Drive Campbell, CA 95008 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

United States District Court

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

For the Northern District of California

3