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Garcia v. Geico Casualty Co.

United States District Court, D. Nevada

January 6, 2015

SERAFIN GARCIA, Plaintiff(s
v.
GEICO CASUALTY COMPANY, Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is Garcia v. Geico Casualty Company, case no. 2:13-cv-00731-JCM-NJK. Pending before the court is an order to show cause why plaintiff and his counsel, Adam Kutner, Esq. should not be sanctioned for his failure to appear and comply with court orders.

I. Background

This case stems from a two-driver car accident where another driver rear-ended plaintiff. Defendant is plaintiff's insurance carrier. Plaintiff filed in the Eighth Judicial District Court, Clark County, Nevada, on February 27, 2013, alleging an under-insured motorist contract claim, and a bad faith contract claim against defendant.

Defendant removed the action to federal court on April 29, 2013, and filed an answer to plaintiff's complaint on May 10, 2013. On February 11, 2014, this court approved the parties' stipulation to stay court proceedings and submit their dispute to private binding arbitration.

The stipulation waived the parties' rights to any trial by a judge and jury and waived the parties' ability to appeal the arbitrator's award or any order made by the arbitrator. The stipulation further stated that the award of the arbitrator shall constitute a final determination of plaintiff's claim against defendant arising out of the accident. Additionally, upon rendering of the decision by the arbitrator, the parties stipulated to dismissal of the action, with prejudice, reserving the right to this court the authority to enforce the agreement. The court scheduled a status hearing for Friday, August 15, 2014.

At the status hearing, plaintiff's counsel Adam Kutner, Esq. did not appear. Cheryl Grames, Esq. appeared for the defense. Ms. Grames indicated that mandatory arbitration had been set for October 20, 2014. The court set another status check for Friday, November 14, 2014. The court further stated that if plaintiff's counsel, Mr. Kutner, was not in attendance at the next status check the court would issue sanctions.

On November 14, 2014, the court held a status check hearing. Danielle Miller, Esq. appeared for the defense. Plaintiff's counsel, Mr. Kutner, once again failed to appear before the court. The court inquired as to the status of this case. Ms. Miller stated that the arbitration did not go forward and that the defense was attempting to obtain additional medical records. The court inquired from Ms. Miller if she knew where Mr. Kutner was. She stated that she did not know, but that Mr. Kutner was aware of the hearing before the court. The court set another status hearing for February 13, 2015. The court also stated that it would issue an order to show cause as to why Mr. Kutner should not be held in contempt for his failure to appear for the November 14, 2014, status check.

On November 14, 2014, the court ordered plaintiff to show cause as to why Mr. Kutner should not be held in contempt for his failure to appear before this court. On December 1, 2014, Victor M. Cardoza, Jr., Esq., filed supplemental documentation on behalf of himself and Mr. Kutner in compliance with the court's order to show cause. (Doc. # 19).

II. Legal Standard

Attorneys are required to follow court orders. Federal Rule of Civil Procedure 16(f) requires counsel to comply with pretrial orders and grants the court authority to order any "just" sanctions, including those outlined in Rule 37(b)(2)(A) for non-compliance. See Fed.R.Civ.P. 37(b)(2)(A)(ii)-(vii). Additionally, this court's local rules provide the court authority to impose "any and all appropriate sanctions on an attorney... who, without just cause... [f]ails to comply with any order of this Court." Local Rule IA 4-1(d).

III. Discussion

Mr. Kutner, plaintiff's counsel, failed to comply with at least two of this court's orders to appear for hearings. Mr. Cardoza explains in his response to this court's order to show cause that Mr. Kutner had associated with Mr. Cardoza and his law firm, Fassett & Cardoza, to further litigate the instant case. Therefore, plaintiff is represented by both Mr. Kutner and Mr. Cardoza in the instant action.

Mr. Cardoza states that the "simple answer" for both attorneys' failures to appear is that they should have been aware of the hearings, but were not. Mr. Cardoza further states that there is no excuse for both attorneys' failure to know of or appear at ...


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