Month: July 2015

Court Grants Default Judgment Against Litigant Who Refuses to Appear for Deposition

STERLING CROSS DEFENSE SYSTEMS, INC. v. DOLARIAN CAPITAL, INC., Dist. Court, ED California 2015 – Google Scholar.

The defendant in this case must have a really good reason not to appear for his deposition.

Neither the witness nor his lawyer appeared at the date and time when the deposition was noticed. The district court awarded sanctions and ordered the client and his lawyer to appear at a show cause hearing to explain why they should not be held in contempt. From there things went downhill:

“The Court determined, with reference to the website of the State Bar of California, that Defendant’s counsel had been ordered inactive by the State Bar as of February 27, 2015 and is no longer eligible to practice in the State of California.[1]Smith never advised the Court of this development, nor did he withdraw as attorney of record for Plaintiff. Plaintiff’s counsel, Jeff Reich, informed the Court, both at the hearing and via declaration, that Smith had been non-responsive to his communication attempts for some time. (Declaration of Jeff Reich ¶ 11, ECF No. 32.)

The Court granted Plaintiff’s request for monetary sanctions in the amount of $1,625.00 and issued an order to show cause why further sanctions, including the striking of all responsive pleadings and entry of default, should not be imposed based on Smith’s failures to appear, both at the deposition and at the hearing on the motion to compel. The order, which was directed at both Dolarian and Smith, required each to file separate responses to the order to show cause no later than June 25, 2015. It also provided Dolarian the opportunity to request a continuance if he required time to retain new counsel. (ECF No. 36.) Finally, the order required personal appearances by both Dolarian and Smith. The order to show cause hearing was set for July 10, 2015.

The U.S. Marshals Service was directed to personally serve both Dolarian and Smith with the order and succeeded in doing so on June 8, 2015; the two were served in adjacent suites in the building housing Smith’s law offices. (ECF No. 37.) Neither Smith nor Dolarian filed any response to the order to show cause. Neither Smith nor Dolarian appeared at the order to show cause hearing.”

The Ninth Circuit uses a five-factor test to determine whether a case should be dismissed pursuant to Rule 37.

” In re Exxon Valdez, 102 F.3d 429, 432 (9th Cir.1996). In determining whether to dismiss an action or enter default pursuant to Rule 37(b)(2)(C), a 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 [opposing party]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ Payne,121 F.3d at 507, quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir.1987). Where a court order is violated, the first and second factors will favor sanctions and the fourth will cut against them.Id.

Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1115 (9th Cir.2004).”

Because neither the defendant nor his lawyer appeared for the show cause hearing the court entered a default judgment against the defendant. This is an ugly outcome for the defendant. One must wonder why he would use a lawyer who was not licensed to practice law and why he failed to appear at the show cause hearing and explain his predicament to the judge. The defendant/deponent could have appeared before the judge and claimed that he did not know that his lawyer was no longer allowed to practice law. The judge would then have been required to give time to obtain new counsel and complete the deposition.

In sum, this is an ugly outcome that could have been prevented with even a minimum of courtesy to the court and opposing counsel.

Edward X. Clinton, Jr.

Trial Court Denies Motion in Limine To Exclude A Witness Who Was Not Listed On Witness List


This opinion raises an issue that can arise in litigation – a party fails to disclose the identity of a witness and the opposing party moves to bar the witness from testifying. Here the court rejected that argument because the defendant was aware of the identity of the witness (even though he was not on the witness list) and failed to take the appropriate deposition.

The court explains: “Bearing those standards in mind, the Court will deny Defendant’s motion in limine to exclude Chastek from testifying at trial. Where, as here, a party fails to list a potential witness in its initial disclosures, courts have not imposed the harsh sanction of excluding his or her testimony at trial so long as the opposing party knows of that witness well in advance of trial. …

At the first step, Defendants are hard-pressed to claim surprise. As Plaintiffs discuss at length in their brief, Defendants knew of Chastek’s identify and position at Wheeling & Lake Erie during the discovery period and could have easily noticed his deposition. But they apparently chose not to do so. Defendants also questioned Wheeling & Lake Erie’s then-Rule 30(b)(6) designee, Michael Mokodean, its Chairman and CEO, Larry Parsons, and its Director of Real Estate, Taxes and Industrial Development, Clarence Jaeger, about Chastek during their respective depositions and introduced an article quoting Chastek (and identifying his position) as an exhibit in no less than two of those deposition. In addition, Chastek was identified on numerous documents (i.e., various e-mail chains) produced to Defendants by Plaintiffs and third-party Chesapeake throughout the discovery phase of this litigation.”

Thus, the court refused to bar the witness because the defendants could have solved the problem themselves by taking the deposition of the witness.

This case is important because it shows how good lawyering by the plaintiff defeated a motion based on a technicality. While its true that the witness was not listed on the witness list, defendants should have been aware that the witness existed given the volume of discovery materials that were produced concerning the witness. This is a demonstration of good lawyering by plaintiff’s counsel.

Edward X. Clinton, Jr.