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ORDER - 1 

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

KATIE CELCE, 

Plaintiff,

v.

HOLLAND AMERICA, et al., 

Defendants.

No. C06-738MJP

ORDER REGARDING

DEFENDANTS’ MOTION TO

DISMISS

This matter comes before the Court on Defendants’ motion to dismiss for Plaintiff’s failure to

prosecute her claim, attend her deposition, or otherwise respond. (Dkt. No. 13.) Plaintiff has not

responded. Having considered Defendants’ motion, the documents submitted in support thereof, and

the record herein, the Court DENIES Defendants’ request for a dismissal order, but ORDERS

Plaintiff to appear for her deposition and independent medical examination by May 29, 2007. If

Plaintiff fails to comply, the Court will dismiss this action with prejudice.

Background

Plaintiff Katie Celce, through her former attorney Ted Willhite, filed this lawsuit against

Defendants on May 25, 2006, alleging that Plaintiff sustained personal injuries while aboard

Defendants’ ship. (Dkt. No. 1.) Throughout fall and winter of 2006-07, Defendants attempted to

arrange for Plaintiff’s deposition and Rule 35 independent medical examination, to no avail. (Shields

Decl. ¶ 4-5.) On January 17, Plaintiff’s counsel filed a motion to withdraw, and on February 6, 2007,

the Court granted that request. (Dkt. No. 12.) In a declaration attached to the motion, Defendant’s

counsel states that he has attempted to move forward with discovery in this case, but Plaintiff has not

Case 2:06-cv-00738-MJP Document 16 Filed 05/08/07 Page 1 of 2
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ORDER - 2 

responded to letters sent to her last known address. (Shields Decl. ¶ 8.) Plaintiff did not appear for

her depositions which were noted for February 19, 2007, and March 27, 2007. (Id. ¶ 11.) Based on

Plaintiff’s failure to move her case forward and to appear at her scheduled depositions, Defendant

moves for an order of dismissal with prejudice.

Discussion

Fed. R. Civ. P. 37(d) provides that dismissal is an appropriate sanction is a party fails to

attend a properly noted deposition. But dismissal is appropriate only if the absent party has evinced

willfulness, bad faith, or fault. Id.; see also Refac Int’l, Ltd. v. Hitachi, Ltd., 921 F.2d 1247, 1254

(9th Cir. 1990). Before ordering the sanction of dismissal, the Court must consider: (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 party seeking sanctions; (4) the public policy favoring disposition of cases on their

merits; and (5) the availability of less drastic sanctions. Refac, 921 F.2d at 1254; Wanderer v.

Johnston, 910 F.2d 652, 656 (9th Cir. 1990).

In this case, the sanction of dismissal is not yet warranted. But Defendants are entitled to

pursue discovery and to have this case move forward. Therefore, the Court ORDERS Ms. Celce to

appear for a properly noted deposition and independent medical examination by May 29, 2007. If

Ms. Celce fails to make herself available for the deposition or the examination, the Court will assume

that she willfully refuses to participate in the discovery process. Defendants shall inform the Court on

May 30, 2007, whether Ms. Celce has fully complied with this order. If she has not done so, this

action will be dismissed with prejudice without further motion. 

The clerk is directed to send a copy of this order to counsel for Defendants and to Ms. Celce

at her last known address.

Dated this 8th day of May, 2007.

AMarsha J. Pechman

 United States District Judge

Case 2:06-cv-00738-MJP Document 16 Filed 05/08/07 Page 2 of 2