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United States v. Li

United States District Court, Ninth Circuit

December 19, 2013

United States of America, Plaintiff,
v.
Grace Xunmei Li, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff has filed a motion for leave to modify a discovery deadline in order to disclose an expert witness. Doc. 125. The motion is fully briefed and neither party has requested oral argument. Docs. 136, 141. The motion will be denied.

Defendant has filed a motion to resume the deposition of Gang Chen. Doc. 128. The motion is fully briefed. Docs. 132, 142. Plaintiff's request for oral argument is denied because the issues have been fully briefed and oral argument will not aid the Court's decision. See Fed.R.Civ.P. 78(b); Partridge v. Reich, 11 F.3d 920, 926 (9th Cir. 1998). For the reasons set forth herein, the Court will deny the motion.

I. Motion to modify discovery deadline to add expert.

Plaintiff seeks leave of Court to modify the discovery deadlines to add an expert document examiner. Doc. 125. Case management schedules "may be modified only for good cause[.]" Fed.R.Civ.P. 16(b)(4); see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992); Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005). "Good cause" exists when a deadline "cannot reasonably be met despite the diligence of the party seeking the extension." Fed.R.Civ.P. 16 cmt. (b). Thus, "Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609.

Plaintiff asserts the expert is needed to testify that the handwriting on the N-400 application of Gang Chen - the individual Plaintiff alleges to be Defendant's bigamous husband - is Defendant's handwriting. Id. at 2. Defendant has conceded the handwriting is hers, and has offered to serve an amended response to the requests for admission clarifying such. Doc. 136. The discovery deadline will not be extended to accommodate an unnecessary expert witness. The motion is denied without prejudice and Defendant is hereby ordered to amend her response to Plaintiff's requests for admission to clarify her position on this matter.

II. Motion to resume deposition of Gang Chen.

A. Background.

Defendant has filed a motion to resume the deposition of Gang Chen under fair and equitable circumstances. Doc. 128. Defendant argues that the government deported Chen to China before she had a full and fair opportunity to depose him, and that Chen's testimony is vital to corroborating her defense that she never intended to be legally married to him and Anthony Bambrough at the same time.

Gang Chen was placed in removal proceedings on July 17, 2010. Doc. 132 at 3. He was arrested and placed in custody on May 19, 2012, and was ordered removed on January 7, 2013. Id. Chen was declared a flight risk by the immigration court, and the Board of Immigration Appeals denied his appeal of his order of removal. Id. Chen sought review in the Ninth Circuit Court of Appeals and simultaneously moved for a stay of removal pending the resolution of his petition. Id. at 4.

Meanwhile, Chen was deposed in this case on September 3 and 13, 2013, at the West County Detention Facility in Richmond, California. Id. Defendant asserts that Plaintiff's attorneys questioned Chen for the entirety of both sessions. Upon concluding the session on September 13, counsel for both parties agreed to schedule another session to complete Chen's deposition on October 4, 2013. On September 5, 2013, however, Chen had withdrawn his motion for a stay from the Ninth Circuit, and on September 27, 2013, Chen was removed to China. Id. at 7.

Defendant asserts that the Plaintiff, as "The Government, " created an inequitable situation by deporting Chen. She asks the Court for one of three alternative forms of relief so that she may finish Chen's deposition in person: (1) order Plaintiff to grant Chen temporary admission into the United States under 8 U.S.C. ยง 1182(d)(5)(A); (2) order Plaintiff to fly Chen to a U.S. airport and allow the deposition to continue in an international zone at the airport; or (3) order Plaintiff to pay to send defense counsel to China to depose Chen. Doc. 128 at 5-6. The Court has already rejected the last alternative in a text entry order on October 18, 2013. The Court now rejects the other requested forms of relief.

B. Temporary parole into the United States.

Defendant argues that the government has the power to parole Chen back into the United States for a limited time to complete his deposition under 8 ...


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