United States District Court, D. Nevada
ORDER ADMONISHING C. CONRAD CLAUS ORDER SANCTIONING CARL JOERGER
NANCY J. KOPPE, Magistrate Judge.
On July 18, 2014, the Court ordered Plaintiffs, Defendant and their counsel to show cause in writing, no later than July 25, 2014, why they should not be sanctioned pursuant to Federal Rule of Civil Procedure 16(f). See Docket No. 12. Plaintiffs and their attorney (C. Conrad Claus) filed a response. Docket No. 13. Defendant and his attorney (Carl Joerger) failed to respond to the order to show cause. For the reasons discussed more fully below, the Court hereby ADMONISHES C. Conrad Claus and hereby SANCTIONS Carl Joerger in a Court fine of $250.
Parties and attorneys are required to follow Court orders. Rule 16(f) requires parties and attorneys to comply with pretrial orders and provides that a judge may order appropriate sanctions, including those outlined in Rule 37(b)(2)(A)(ii)-(vii), for non-compliance. Whether the party and/or its counsel disobeyed the court order intentionally is impertinent; sanctions may be imposed when the parties and their counsel disobey a court order. See Lucas Auto. Eng'g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001) (sanctions may be imposed when disobedience of order is unintentional). Rule 16(f) "was designed not only to insure the expeditious and sound management of cases for trial, but to deter conduct that unnecessarily consumes the Court's time and resources that could have been more productively utilized by litigants willing to follow the Court's procedures.'" Martin Family Trust v. Heco/Nostalgia Enterps. Co., 186 F.R.D. 601, 603 (E.D. Cal. 1999) (quoting Mulkey v. Meridan Oil, Inc., 143 F.R.D. 257, 262 (W.D. Okla. 1992)).
The Court has broad discretion in fashioning the appropriate sanctions. See, e.g., Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1397 (9th Cir. 1993). The Court may impose any "just" sanctions under Rule 16(f). In determining the appropriate sanction, the Court notes that a primary objective of Rule 16(f) is the deterrence of similar misconduct. Martin Family Trust, 186 F.R.D. at 604.
On July 14, 2014, the parties submitted a proposed discovery plan. Docket No. 10. On July 15, 2014, the Court denied the proposed discovery plan and ordered that a new discovery plan be submitted no later than July 17, 2014. See Docket No. 11. The parties failed to comply with that order. On July 18, 2014, the Court issued the pending order to show cause why the parties and their counsel should not be sanctioned for failing to comply with the July 15, 2014 order. Docket No. 12. Responses to the order to show cause were due no later than July 25, 2014. See id. Although Plaintiffs and their counsel timely responded to the order to show cause, Defendant and his counsel did not.
A. Defendant and Carl Joerger
Defendant and his attorney (Carl Joerger) have violated two clear Court orders. They violated the Court's July 15, 2014 order to timely file an amended discovery plan and they further violated the order to show cause by failing to timely respond to it. In light of the failure to respond to the order to show cause, it appears that there is no justification for these shortcomings and that sanctions are warranted. In the Court's view, it appears that Mr. Joerger as Defendant's attorney bears the brunt of the blame for not responding to the Court's orders given that he receives the notice of the Court orders rather than his client. In light of the circumstances, the Court SANCTIONS Mr. Joerger in a Court fine of $250. The sanction is personal to Mr. Joerger. Payment of the $250 shall be made within ten days to the "Clerk, U.S. District Court." Mr. Joerger shall submit proof of payment to the undersigned Judge's chambers within five days of payment.
B. Plaintiffs and C. Conrad Claus
Plaintiffs and their attorney (C. Conrad Claus) did respond to the order to show cause. Although not entirely clear, Mr. Claus argues primarily that he failed to comply with the July 15, 2014 order because he and his staff did not receive notice of its issuance. See Docket No. 13. The Court takes very seriously representations from attorneys that they did not receive notice of a Court order. The Court tracks the sending of the notices through its Notice of Electronic Filing ("NEF"). In this case, the NEF shows that the notice of the July 15, 2014 order was sent from the Court to Mr. Claus to two email address: email@example.com, firstname.lastname@example.org. In addition, however, the Court also tracks delivery of the NEFs to counsel through the Administrative Office's Case E-Mail Notification Tracking System ("CENTS"). In this case, the CENTS records show that the Court's notice was successfully delivered to the server for the above two email addresses.
Together, the NEF and the CENTS records create significant evidence of proper delivery of the Court's notice. In particular, the NEF alone establishes that notice was properly sent and creates a presumption of delivery and receipt. See American Boat Co. v. Unknown Sunken Barge, 567 F.3d 348, 352-53 (8th Cir. 2009). This presumption is not overcome based on a simple statement in a declaration that notice was not received. See, e.g., Trustees of the Operating Eng'rs Pension Trust v. Maui One Excavating, Inc., 2013 WL 1908328, *2 (D. Nev. May 7, 2013) (finding such an assertion "plainly insufficient" to overcome presumption, and citing Singh v. Arrow Truck Sales, Inc., 2006 WL 1867540, *1 (E.D. Cal. July 5, 2006)). That is especially true when the CENTS records further confirm delivery. Id.
In this case, the Court finds that Mr. Claus has failed to rebut the presumption of delivery created by the NEF and further confirmed by the CENTS record. Mr. Claus has also failed to put forth any other justification for his violation of the July 15, 2014 order. Nonetheless, in the circumstances of this case, the Court finds that a strong ADMONISHMENT of Mr. Claus is sufficient sanction to deter future misconduct. The Court reminds Mr. Claus that he bears the responsibility of maintaining his CM/ECF account and reviewing and responding to Court orders. See, e.g., Cabrera v. New Albertson's, ...