United States District Court, D. Nevada
J. KOPPE United States Magistrate Judge.
before the Court are two orders to show cause arising out of
Plaintiff's non-appearance at the early neutral
evaluation scheduled for January 30, 2018. Docket Nos. 24,
25. Plaintiff and her attorneys filed responses. Docket Nos.
26, 27. Defendant filed a response. Docket No. 29. The Court
heard some representations on this issue on January 30, 2018,
see Docket No. 23, see also Docket No. 28
(transcript), and finds the matter properly resolved without
a further hearing, see Local Rule 78-1.
case is assigned to the Court's early neutral evaluation
program. Docket No. 4. As a result, on November 16, 2017, the
Court set an early neutral evaluation and ordered that
personal appearance was required by, inter alia,
“[a]ll individual parties.” Docket No. 11 at 1.
At the specific request of both parties, on December 1, 2017,
the Court rescheduled the early neutral evaluation for
January 30, 2018. Docket No. 16; see also Docket No.
12. Two months later and a few hours before the early neutral
evaluation was scheduled to commence, Plaintiff's counsel
notified chambers that his client was in the Philippines and
therefore would not appear as ordered. See Docket
No. 22. As a result, Plaintiff and her counsel violated the
Court's clear order, resulting in the vacation of the
early neutral evaluation. See Docket No. 23.
the above, on November 30, 2017, attorney Leslie Mark Stovall
represented to the Court that Plaintiff was
“available” for an early neutral evaluation on
January 30, 2018. Docket No. 12 at 2 (“The parties are
available and propose the following dates for the Court's
consideration to reschedule the ENE session: January 30, 2018
. . .”). In addition, on January 23, 2018, attorney
Richard Waltjen represented to the Court in an early neutral
evaluation statement that the individuals attending the early
neutral evaluation included “Elsie Dalope,
Plaintiff.” ENE Statement at 1.
the circumstances, the Court issued two orders to show cause.
First, the Court ordered Plaintiff, Mr. Stovall, and Mr.
Waltjen to show cause why sanctions should not be imposed for
violating the Court's order that Plaintiff appear for the
early neutral evaluation. Docket No. 24. Second, the Court
issued an order for Mr. Stovall, and Mr. Waltjen to show
cause why sanctions should not be imposed for their
misrepresentations to the Court as to Plaintiff's
availability to appear for the early neutral evaluation.
Docket No. 25.
FIRST ORDER TO SHOW CAUSE
first order to show cause is premised on the failure to
comply with a clear order of the Court. Orders are not
suggestions or recommendations, they are directives with
which compliance is mandatory. See, e.g.,
Chapman v. Pacific Tel. & Tel. Co., 613 F.2d
193, 197 (9th Cir. 1979); see also Weddell v.
Stewart, 261 P.3d 1080, 1085 & n.9 (Nev. 2011).
There are several sources of legal authority by which federal
courts enforce their orders. Most pertinent here, Rule 16(f)
of the Federal Rules of Civil Procedure requires compliance
with any “scheduling or other pretrial order.”
Fed.R.Civ.P. 16(f)(1)(C). Rule 16(f) also expressly provides
for the imposition of sanctions when attorneys or parties
fail to appear at a court-ordered conference. Fed.R.Civ.P.
16(f)(1)(A). Hence, when attorneys or parties fail to comply
with an order to appear at a settlement conference, Rule
16(f) is triggered. See, e.g., Ayers v. City of
Richmond, 895 F.2d 1267, 1270 (9th Cir.
16(f) is “broadly remedial and its purpose is to
encourage forceful judicial management.” Sherman v.
United States, 801 F.2d 1133, 1135 (9th Cir. 1986) (per
curiam). Rule 16(f) applies regardless of whether the
non-compliance with the court order was intentional. See,
e.g., Lucas Auto. Eng'g, Inc. v.
Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir.
2001). Similarly, “[i]t is firmly established that
sanctions may be imposed for a party's unexcused failure
to comply with a Rule 16 order, even if that failure was not
made in bad faith.” Hologram USA, Inc. v. Pulse
Evolution Corporation, Case No. 2:14-cv-0772-GMN-NJK,
2016 WL 2757377, at *2 (D. Nev. May 11, 2016) (Navarro, C.J.)
court determines that Rule 16(f) has been triggered, it has
broad discretion in fashioning an appropriate sanction.
See, e.g., Official Airline Guides, Inc. v.
Goss, 6 F.3d 1385, 1397 (9th Cir. 1993). Violations of
orders are “neither technical nor trivial, ”
Martin Family Trust v. Heco/Nostalgia Enters. Co.,
186 F.R.D. 601, 603 (E.D. Cal. 1999), and can have severe
ramifications. Rule 16(f) itself provides that courts may
issue “any just orders, ” including those
authorized by Rule 37(b)(2)(A)(ii)-(vii), which include the
initiation of contempt proceedings and entry of
case-dispositive sanctions. See Fed. R. Civ. P.
16(f)(1). While not expressly enumerated, the imposition of
court fines is within the scope of the “just
orders” permitted by Rule 16(f). See, e.g., Nick v.
Morgan's Foods, Inc., 270 F.3d 590, 595-96 (8th Cir.
2001). In determining the appropriate sanction, a primary
objective is to deter similar misconduct. See, e.g.,
Martin Family Trust, 186 F.R.D. at
case, Mr. Stovall concedes that he should be required to pay
the attorneys' fees incurred by Defendant for the failure
of Plaintiff to appear at the early neutral evaluation.
Docket No. 26 at 4-5. The Court agrees that Defendant should
recover its fees. Defendant has filed a declaration
identifying $4, 847 in fees expended on the vacated early
neutral evaluation session. Docket No. 29-2. Plaintiff has
not challenged the reasonableness of those fees, and the
Court finds them to be reasonable. The Court therefore
ORDERS Mr. Stovall to pay Defendant $4, 847
in attorneys' fees.
Stovall argues that the sanctions imposed should be limited
to those attorneys' fees and argues, inter alia,
that the imposition of a court fine is improper. Docket No.
26 at 5-6. Mr. Stovall contends that a showing of
recklessness, gross negligence, or willful misconduct is
required to assess a court fine. Id. As a threshold
matter, the case cited by Mr. Stovall involves the imposition
of sanctions for violations of the local rules. See
Zambrano v. City of Tustin, 885 F.2d 1473, 1480 (9th
Cir. 1989) (“[A]bsent grossly negligent, reckless, or
willful conduct, monetary penalties such as jury costs or
judicial sanctions cannot be fairly levied against counsel
for violation of the local rules” (emphasis added)).
Mr. Stovall cites no case law applying the standard he urges
in the context of Rule 16(f) sanctions for violating a clear
court order, and the case law in that context appears to be
to the contrary. See, e.g., Martin Family
Trust, 186 F.R.D. at 604 (imposing court fine after
discussing numerous cases and legal treatises rejecting
requirement of willfulness or recklessness). At any rate, a
court fine is appropriately imposed in this case even under
the standard proposed by Mr. Stovall. Mr. Stovall has been
sanctioned previously for violating a similar order regarding
attendance at a settlement conference. See Burrage-Simon
v. State Farm Mut. Auto. Ins. Co., Case No.
2:14-cv-00429-GMN-NJK, 2015 WL 5224885 (D. Nev. Sept. 8,
2015). Notwithstanding those sanctions, Mr. Stovall in this
case failed to take the basic steps required to ensure his
client's attendance as ordered. Indeed, neither Mr.
Stovall nor his staff over whom he has
responsibility ever contacted Plaintiff about her
required appearance in Court despite affirmatively
representing to the Court that she was available and would be
attending. See Docket No. 26-4 at ¶ 2
(declaration of Plaintiff, attesting that “I was not
asked by my attorney or any of their [sic] staff members
about my availability for the Early Neutral
Evaluation”). Compounding that error, Mr. Stovall and
his staff appear to have had no communication of any kind
with Plaintiff throughout this period. As Defendant points
out, even the most minimal communication between Mr. Stovall
(or his staff) and his client would have avoided this entire
situation. Docket No. 29 at 3-4. At best, Mr. Stovall acted
recklessly and with gross negligence, and a court fine is
appropriate to deter similar misconduct in the future. Given
the circumstances of this case, the Court
ORDERS Mr. Stovall to pay a $1, 000 court
Mr. Stovall has accepted full responsibility for violating
the early neutral evaluation order, his associate Mr. Waltjen
also shares in the responsibility for that violation. The
response to the order to show cause represents that Mr.
Waltjen is an inexperienced attorney new to federal district
court practice. Docket No. 26 at 7. “We expect an
attorney practicing law in federal court to become familiar
with and follow rules applicable to practice in this
court.” Dela Rosa v. Scottsdale Memorial Health
Sys., Inc., 136 F.3d 1241, 1244 (9th Cir. 1998). To
ensure that similar issues do not repeat themselves, the
Court hereby ORDERS Mr. Waltjen to read the
local rules in their entirety and to attend a continuing
legal education course specific to federal litigation
as otherwise outlined herein, the first order to show cause
is DISCHARGED. The Court
CAUTIONS Plaintiff, Mr. Stovall, and Mr.
Waltjen that they are all required to strictly comply with
Court orders moving forward.FAILURE TO DO SO MAY
RESULT IN ...