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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 13, 2010

MARIA A. GARVIN, ET AL.,
PLAINTIFFS,
v.
LINDA TRAN, ET AL., TO COMPEL THE DEPOSITION OF
JESUS CHAVEZ DEFENDANTS.

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

E-filed December 13, 2010 **

NOT FOR CITATION

United States District Court For the Northern District of California

ORDER (1) DISCHARGING ORDER TO SHOW CAUSE AND (2) GRANTING PLAINTIFFS' MOTION

[Re: Docket Nos. 211 & 217]

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 25 unsworn declaration of his counsel than it does a brief). Docket No. 213. Oral argument was heard 26 on November 30, 2010, after which the Court issued an order continuing Plaintiffs' motion to 27 compel and requiring Chavez to appear personally on December 9 to explain his actions and show cause why the Court should not strike his answer or sanction him in some other manner. Docket No. 217.

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 United States District Court obligations in this litigation. It is not surprising, then, that despite being ordered to do so, Chavez For the Northern District of California 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.

At the hearing on December 9, Chavez said that he has so far failed to appear for his deposition because he has been busy with "issues." Such a vague excuse is not a valid reason for not participating in discovery. Nevertheless, the Court will not strike Chavez's answer or sanction him at this time. However, as the Court stated at the December 9 hearing, Chavez shall appear for deposition on Monday, January 10, 2011 at 10:00 a.m. at Plaintiffs' counsel's office at 152 North Third Street, Third Floor, San Jose, California, 95112. Should Chavez again fail to appear for deposition without a compelling reason, the Court will strike his answer. While fact discovery remains closed in this case, Plaintiffs may propound follow-up discovery if Chavez's deposition testimony provides a reasonable basis for doing so.

CONCLUSION

Based on the foregoing, the Court GRANTS Plaintiffs' motion to compel. Chavez shall appear for deposition on Monday, January 10, 2011 at 10:00 a.m. at Plaintiffs' counsel's office at 152 North Third Street, Third Floor, San Jose, California, 95112. The Court's December 3 order to show cause is DISCHARGED.

IT IS SO ORDERED.

United States District Court For the Northern District of California

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 Cindy Hamilton hamiltonc@gtlaw.com, sandiferc@gtlaw.com, svlitdock@gtlaw.com Jessica Lynn Fry jessicaf@lawfoundation.org, nuemig@lawfoundation.org Karen Rosenthal rosenthalk@gtlaw.com, sandiferc@gtlaw.com, svlitdock@gtlaw.com Kimberly Pederson kimp@lawfoundation.org, teresam@lawfoundation.org Kyra Ann Kazantzis kyrak@lawfoundation.org Leo B. Siegel k9esq@flash.net Michael E. Stone mikeestone@yahoo.com Shawn Robert Parr shawn@parrlawgroup.com, donna@parrlawgroup.com William Cornelius Last , Jr wclast@lastlawfirm.com William J. Goines goinesw@gtlaw.com, sandiferc@gtlaw.com, svlitdock@gtlaw.com 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

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.

For the Northern District of California

20101213

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