Opinion
ORDER
CAROLYN K. DELANEY, Magistrate Judge.
Currently calendared for hearing on October 16, 2013 is defendants' motion to dismiss. Because oral argument would not be of material assistance, this matter is submitted on the briefs. E.D. Cal. Local Rule 230(g). Defendants move for terminating sanctions because of plaintiff's failure to appear for his deposition. Upon review of the documents in support and opposition, the court concludes terminating sanctions are not appropriate at this time. See Connecticut General Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (five part test to determine whether case-dispositive sanction is appropriate; under fifth factor court should consider lesser sanctions, whether lesser sanctions have previously been tried, and whether recalcitrant party has been warned about the possibility of case-dispositive sanctions).
Defendants timely noticed the deposition of plaintiff within the time limits set forth in the scheduling order. In light of the telephone conversations and e-mails exchanged by the parties regarding the date for the deposition, the court does not find plaintiff's failure to appear for deposition merits the sanction of dismissal of the action. However, it appears that plaintiff, who is a member of the Bar, was well aware of the imminence of the discovery cut-off and worked that to his advantage to avoid being deposed in this matter. The court will accordingly reopen discovery for the limited purpose of allowing plaintiff's deposition to be taken. Expenses will be awarded to defendants for plaintiff's failure to appear at the duly noticed deposition. Fed.R.Civ.P. 37(d).
Defendants will be awarded expenses constituting one hour of attorney time for attendance at the depositions on August 26, 2013 and September 3, 2013 at an hourly rate of $175.00 and the court reporter fees in the amount of $220.00
Accordingly, IT IS HEREBY ORDERED that:
1. The hearing date of October 16, 2013 on defendants' motion to dismiss is vacated.
2. Defendants' motion for terminating sanctions (ECF No. 28) is denied.
3. Reasonable expenses in the amount of $395.00 are awarded to defendants against plaintiff.
4. No later than November 1, 2013, plaintiff shall appear for his deposition to be taken at the time and place noticed by defendants. Plaintiff is cautioned that failure to appear for deposition may result in dismissal of this action.