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Maria A. Garvin, et al v. Linda Tran

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


December 3, 2010

MARIA A. GARVIN, ET AL., PLAINTIFFS,
v.
LINDA TRAN, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

E-filed December 3, 2010

2 3 4 5 6 7 8 9 10 11 12

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER (1) CONTINUING HEARING ON PLAINTIFFS' MOTION TO 13 COMPEL THE DEPOSITION OF JESUS CHAVEZ AND (2) 14 REQUIRING JESUS CHAVEZ TO SHOW CAUSE WHY HE SHOULD 15 NOT BE SANCTIONED [Re: Docket No. 211] 17 16 18

BACKGROUND

Plaintiffs have been trying to take the deposition of defendant Jesus Chavez ("Chavez") for 19 nearly two years. During that time, Plaintiffs properly noticed his deposition four times; Chavez 20 purportedly was incarcerated for two of depositions (and so they were cancelled), but he simply 21 failed to appear for the other two depositions. (Docket No. 212, ¶¶ 2-4, Exs. A & B; Docket No. 22 207, ¶ 2-6, Ex. A.) 23

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 25 unsworn declaration of his counsel than it does a brief) (Docket No. 213), and oral argument was 26 heard on November 30, 2010. 27 28

DISCUSSION

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Plaintiffs argue that Chavez should be compelled to show up for his deposition or default 3 judgment should be entered against him. (MTC at 6-7.) Pursuant to Rule 30, a party may depose 4 any other party without leave of court. FED. R. CIV. P. 30(a)(1). Chavez is a defendant in this 5 action, so Plaintiffs have the right to depose him. 6

Chavez's failure to attend his properly noticed deposition is indicative of his larger disregard 7 for this action as a whole. At oral argument, his counsel represented that he had not communicated 8 with Chavez for some time and acknowledged that Chavez does not appear to take seriously his 9 obligations in this litigation. It is not surprising, then, that despite being ordered to do so, Chavez 10 also failed to appear at the mandatory settlement conference held on August 4, 2010. (Docket Nos. 11 183 & 202.)

United States District Court

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In short, Chavez has repeatedly failed to cooperate with the discovery process in this action, 13 has acted in violation of court order, and has shirked his responsibilities as a litigant in federal court. 14

As such, the Court orders Chavez to appear in person before it on December 9, 2010 to explain his 15 actions to date and to show cause why the Court should not strike his answer (Docket No. 82) or 16 sanction him in some other manner. Should Chavez fail to appear in person on December 9 (or 17 provide good cause for hearing the matter on a different date), the Court will deem his non-18 appearance as a further basis for sanctioning him. 19

For the Northern District of California

CONCLUSION

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Based on the foregoing, the Court CONTINUES Plaintiffs' motion to compel to December 9 21 at 10:00 a.m. The Court further ORDERS Chavez to appear in person before the Court on 22 December 9, 2010 at 10:00 a.m. in Courtroom 2, Fifth Floor, United States District Court, 280 23 South First Street, San Jose, California to explain his actions to date and to show cause why the 24 Court should not strike his answer or sanction him in some other manner. 25 26

IT IS SO ORDERED.

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C07-01571 HRL Notice will be electronically mailed to:

Alisha Mei Yuk Louie alouie@sideman.com Annette D. Kirkham annettek@lawfoundation.org, teresam@lawfoundation.org 3

Cindy Hamilton hamiltonc@gtlaw.com, sandiferc@gtlaw.com, svlitdock@gtlaw.com Jessica Lynn Fry jessicaf@lawfoundation.org, nuemig@lawfoundation.org 4

Karen Rosenthal rosenthalk@gtlaw.com, sandiferc@gtlaw.com, svlitdock@gtlaw.com Kimberly Pederson kimp@lawfoundation.org, teresam@lawfoundation.org 5

Kyra Ann Kazantzis kyrak@lawfoundation.org Leo B. Siegel k9esq@flash.net 6

Michael E. Stone mikeestone@yahoo.com Shawn Robert Parr shawn@parrlawgroup.com, donna@parrlawgroup.com 7

William Cornelius Last , Jr wclast@lastlawfirm.com William J. Goines goinesw@gtlaw.com, sandiferc@gtlaw.com, svlitdock@gtlaw.com8

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5:07-cv-01571-HRL Please see General Order 45 Section IX C.2 and D; Notice has NOT been 9 electronically mailed to:

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Raya Ghajar 1101 Salerno Drive 11 Campbell, CA 95008 United States District Court

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

For the Northern District of California

20101203

© 1992-2010 VersusLaw Inc.



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