United States District Court, N.D. California, San Francisco Division
ORDER STRIKING ANSWER AND IMPOSING SANCTIONS
BEELER United States Magistrate Judge
Goes International moves to strike Defendant Dodur's
answer, enter terminating sanctions, and impose monetary
sanctions of $7, 245 for discovery violations. (Motion - ECF
No. 121.) The court grants the motion.
International is a Swedish company that sells a
bubble-shooting video game called Bubble Bust!
(First Amended Complaint - ECF No. 27 at 2, 5-8, 29.) It sued
Dodur Ltd. and its shareholders/game developers for copyright
infringement, claiming that they copied Bubble Bust!
and marketed infringing games called Puzzle Bubble
Free! and Puzzle Bubble Sea! (Id. ¶¶
1, 3, 12-15.) The defendants moved to dismiss for lack of
personal jurisdiction; the court granted the motion in part,
dismissing the individual defendants but finding personal
jurisdiction against Dodur based on its distribution of games
in the U.S., resulting in revenues generated from U.S.
players, including from ads targeted to that U.S. audience.
(Order - ECF No. 51 at 19.)
and following the court's order granting Goes' motion
to compel Dodur to produce discovery about damages,
Dodur's attorney withdrew from the case. (Orders - ECF
Nos. 84, 89.) On January 12, 2017, following Goes'
motion, the court again ordered Dodur to produce discovery
and name a Rule 30(b)(6) deponent; it also directed Dodur to
name new counsel by February 6, 2017. (Motion - ECF No. 104;
Order - ECF No. 109.) The court ordered Dodur to appear at a
hearing on February 16, 2017, to show cause why it had not
yet substituted in a new attorney to represent it.
(Id.; Clerk's Notice - ECF No. 110.) Goes
thereafter filed proof of service in English and Chinese.
(Proof of Service and Update - ECF No. 113.)
did not appear at the hearing on February 16, 2017.
(See Minute Entry - ECF No. 114.) Given the lack of
appearance, the court allowed Goes to cancel its deposition
of Dodur, apparently set in New York. (Id.) Dodur
has a parent company in New York called Qihoo 360.
(Supplemental Statement - ECF No. 105.)
court then set a further hearing for March 9, 2017, at 9:30
a.m. and directed Dodur to show cause at the hearing why it
had not named new counsel or produced the discovery that the
court ordered. (Order - ECF No. 116.) The court warned that
if it did not do so, it risked Goes' moving to strike its
answer and then moving for default judgment against it.
(Id.) Dodur did not appear at the hearing. (Minute
Order - ECF No. 119.) Goes then filed its motion to strike
the answer and for terminating sanctions. (Motion - ECF No.
district court decides to impose sanctions or discipline, it
must clearly delineate under which authority it acts to
ensure that the attendant requirements are met. Weissman
v. Quail Lodge, Inc., 179 F.3d 1194, 1200 (9th Cir.
1999) (citing Keegan Mgmt. Co. Secs. Litig., 78 F.3d
431, 435 (9th Cir. 1996) (“For a sanction to be validly
imposed, the conduct must be sanctionable under the authority
relied on.”) (internal quotation marks and citation
omitted)). “The imposition of sanctions requires a
statement of reasons for the district court's action,
including the need for the particular sanctions
imposed.” Couveau v. Am. Airlines, Inc., 218
F.3d 1078, 1081 (9th Cir. 2000) (“The imposition of
sanctions requires a statement of reasons for the district
court's action, including the need for the particular
sanctions imposed.”) (citing G.J.B. & Assocs.,
Inc. v. Singleton, 913 F.2d 824, 830 (10th Cir. 1990)
(“If the district court ultimately imposes sanctions,
detailed findings are necessary to identify the objectionable
conduct and provide for meaningful appellate
Dismissal Under Rule 37(b) and (d)
our precedents, in order for a court to dismiss a case as a
sanction [under Rule 37(b)], the district court must consider
five factors: (1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage
its docket; (3) the risk of prejudice to the defendants; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
alternatives.'” Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (applying
Rule 37(b) standard in a Rule 41(b) case) (citing
Hernandez v. City of El Monte, 138 F.3d 393, 399
(9th Cir. 1998) (quoting Henderson v. Duncan, 779
F.2d 1421, 1423 (9th Cir. 1986))). “We 'may affirm
a dismissal where at least four factors support dismissal, .
. . or where at least three factors 'strongly'
support dismissal.'” Id. (quoting
Hernandez, 138 F.3d at 399) (quoting in turn
Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.
1992)). “Although it is ...