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Zhi Yang Zhou, et al v. Jiang David

April 26, 2012

ZHI YANG ZHOU, ET AL., PLAINTIFFS,
v.
JIANG DAVID, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge

ORDER DENYING TERMINATING SANCTIONS AGAINST XUE YUN CHEN (Dkt. No. 82)

Now pending before the Court is Defendants' motion for terminating sanctions against Plaintiff Xue Yun Chen ("Plaintiff") and $2,195 in related attorney's fees and costs. (Dkt. 20 No. 82.) After carefully considering the parties' written submissions, the Court DENIES 21

Defendants' motion for terminating sanctions against Xue Yun Chen. The Court will 22 determine alternative appropriate sanctions, including attorney's fees and costs, after the 23 hearing on May 3, 2012. In the interim, Plaintiff is ordered to appear with counsel for a 24 deposition at a time and place convenient for Defendants. 25

BACKGROUND

Defendants contend that Xue Yun Chen should be dismissed as a Plaintiff because she 27 missed three depositions on January 25, February 1, and March 19, 2012. (Dkt. No. 82 at 7.) 28 Defendants previously brought a sanctions motion regarding the January 25 and February 1 dates (Dkt. No. 71), on which the Court ruled (Dkt. No. 80.) At this time, the Court considers 2 whether the third missed deposition date on March 19 is egregious enough to justify 3 terminating sanctions against Plaintiff. 4

Plaintiffs Zhi Yang Zhou, Xue Yen Chen, and Tony Chen to appear for their depositions with 6 counsel on March 19, 2012. (Dkt. No. 73.) Plaintiff was in China caring for a sick relative at 7 the time of both the case management conference and the March 19 deposition date and only 8 returned on April 4, 2012 to attend the settlement conference on April 5, 2012. (Dkt. No. 95 at 9 Plaintiff and then adequately prepare for trial. (Dkt. No. 97 at 2.) Plaintiff counters that 11 China and available to be deposed with minimal notice. (Dkt. No. 95 at 3.) At the Case Management Conference on February 16, 2012, the Court ordered 4.) Defendants assert that since fact discovery closed April 1, 2012, they cannot now depose 10 Defendants are not prejudiced by a delayed deposition from Plaintiff, who is now back from 15 dismissal-on a party that fails to attend a properly noticed deposition. Fed. R. Civ. P. 37(d).

DISCUSSION

Circumstances must "overcome the strong policy favoring disposition of cases on their 17 merits" to justify terminating sanctions. U.S. for Use of Ben. Of Wiltec Guam, Inc. v. Kahaluu 18

Const. Co., Inc., 857 F.2d 600, 605 (9th Cir. 1988). In addition, the "harsh sanction" of 19 dismissal, even for "a party's repeated failure to appear for deposition," is only proper when 20 the failure "is due to the willfulness, bad faith, or fault of the party." Stars' Desert Inn Hotel & 21

The Court must also consider:

(1) the public's interest in expeditious resolution of litigation, (2) the court's need to manage its dockets, (3) the risk of prejudice to the party seeking sanctions, (4) the public policy favoring disposition of cases on their merits, and (5) the availability of less drastic sanctions.

Hyde v. Drath & Baker, 24 F.3d 1162, 1166 (9th Cir. 1994). The first three factors weigh in 27 favor of dismissing Plaintiff from this case. The missed depositions have hampered the speedy resolution of this case, the Court's docket had to accommodate the resulting motions Federal Rule of Civil Procedure 37 permits the court to impose sanctions-including Country Club, Inc. v. Hwang, 105 F.3d 521, 525 (9th Cir. 1997).

for court-ordered depositions and sanctions, and Defendants have experienced some prejudice 2 by not having Plaintiff's deposition prior to the close of fact discovery and the further 3 settlement conference. The last two factors, however, tip strongly in favor of Plaintiff. 4

5 that the ultimate sanction of dismissal is warranted here. Only the March 19 deposition was 6 court-ordered, and Plaintiff's presence in China at both the time of the order and the 7 deposition supports an inference ...


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