United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

KIMBERLY GLASS,

Plaintiff,

v.

ARCHSTONE COMMUNITIES,

Defendant.

___________________________________/

No. C-08-4931 EMC

ORDER DENYING WITHOUT

PREJUDICE DEFENDANT’S MOTION

TO DISMISS

(Docket No. 50)

Defendant Archstone Communities has filed a motion to dismiss based on Plaintiff Kimberly

Glass’s failure to respond to discovery and to prosecute this case. No opposition to the motion was

filed. A hearing was held on Archstone’s motion on February 10, 2010. At the hearing, counsel for

Ms. Glass indicated that no opposition had been filed because he had not been able to contact Ms.

Glass. Having considered the papers submitted as well as the oral argument of counsel, the Court

hereby DENIES the motion to dismiss, but without prejudice.

Under Federal Rule of Civil Procedure 37(d), a court may sanction a party if she fails to

appear for a deposition after being served with proper notice or if she fails to respond to document

requests after being properly served. See Fed. R. Civ. P. 37(d)(1)(A). Sanctions that may be

awarded include any of those listed in Rule 37(b)(2)(A)(i)-(vi). See Fed. R. Civ. P. 37(d)(3). Rule

37(b)(2)(A)(v) provides for dismissal of the action or proceeding in whole or in part. See Fed. R.

Civ. P. 37(b)(2)(A)(v). 

Of course, “in view of the strong policy favoring resolution of cases on their merits, and

since the magnitude of due process concerns grows with the severity of the sanction, courts

Case 3:08-cv-04931-EMC Document 55 Filed 02/10/10 Page 1 of 2
United States District Court

For the Northern District of California

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uniformly have held that orders dismissing the action . . . are generally deemed appropriate only as a

last resort, or when less drastic sanctions would not ensure compliance with a court’s orders.” 7-37

Moore’s Fed. Prac. – Civ. § 37.50[2][a]. The Ninth Circuit has specifically stated that the

availability of less drastic sanctions is one of five factors that a court should consider in determining

whether a dismissal is appropriate. See Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829,

831 (9th Cir. 1986) (noting that, “ because dismissal is such a severe remedy, we have allowed its

imposition . . . only after requiring the district court to weigh several 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 sanctions”). 

Taking into account the five factors identified above, the Court concludes while nearly all the

factors favor dismissal, that a dismissal at this juncture is premature, particularly because of the

availability of a less drastic sanction is last clear warning to Plaintiff. The Court therefore rules as

follows.

Ms. Glass shall be given one final opportunity to serve responses to the written discovery

propounded (interrogatories and document requests) and to appear for a deposition. More

specifically, she shall have until February 24, 2010, to serve responses to the written discovery and

to contact Archstone to arrange for a mutually agreeable date for her deposition which must be given

no later than March 5, 2010. The Court forewarns Ms. Glass that, if she does not comply with

this order, then the Court shall dismiss her case with prejudice pursuant to Rule 37(d). Ms.

Glass’s counsel is directed to make reasonable efforts to find and contact her.

This order disposes of Docket No. 50.

IT IS SO ORDERED.

Dated: February 10, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

Case 3:08-cv-04931-EMC Document 55 Filed 02/10/10 Page 2 of 2