United States District Court, D. Nevada
TRUSTEES OF THE OPERATING ENGINEERS PENSION TRUST, et al., Plaintiffs,
DIVERSIFIED CONCRETE CUTTING, INC., et al., Defendants.
FOLEY, JR. UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiffs' Motion for
Order to Show Cause (ECF No. 26), filed on July 3, 2018. To
date, Defendant Mercurio has not responded to Plaintiffs'
Motion for Order to Show Cause. A hearing in this matter was
conducted on July 26, 2018.
11, 2018, Plaintiffs filed their motion for judgment debtor
exam (ECF No. 17) and on May 15, 2018, the Court granted
their motion. See ECF No. 19. The Court ordered
Defendant Mercurio to appear for a judgment debtor
examination on June 22, 2018. Defendant Mercurio did not
appear for the judgment debtor examination as ordered.
Plaintiffs represent that Defendant Mercurio has not
contacted them to explain his failure to appear for the
are required to follow this Court's orders. See
Local Rule (“LR”) IA 11-8; Fed. R. Civ. Pro.
16(f). LR IA 11-8 provides the Court with authority to impose
“any and all appropriate sanctions on an attorney or
party” that fails to comply with any order of this
court. The Court may exercise discretion in fashioning the
appropriate sanctions for violations of a court order.
Official Airline Guides, Inc. v. Goss, 6 F.3d 1385,
1396 (9th Cir.1993). Von Brimer v. Whirlpool Corp.,
536 F.2d 838, 844 (9th Cir.1976). The Court considers the
objective of Rule 16(f) 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, 186 F.R.D.
at 603. The Court also considers the resources wasted by the
parties due to their violations of the court's orders.
Hologram USA, Inc. v. Pulse Evolution Corp., 2015 WL
5165390, at *5 (D. Nev. Sept. 3, 2015), Fed.R.Civ.P.
failed to appear for his judgment debtor exam, failed to
respond to Plaintiffs' Motion for Order to Show Cause,
and failed to appear for the July 26, 2018 hearing. The
Court, therefore, grants Defendant's Motion for Order to
Show Cause and awards Plaintiffs reasonable costs and
attorney's fees incurred in preparing and filing their
Motion for Order to Show Cause. The Court will, however,
allow Defendant Mercurio another opportunity to appear for
his judgment debtor examination. Defendant shall appear at
the law offices of Reese Kintz, 201 W. Liberty St., Suites
203-204, Reno, NV 89501 on August 21, 2018
at 10:00 a.m. to be sworn in for a judgment debtor
examination and to answer questions concerning property
subject to the ownership and control of Kenneth Mercurio.
The Court further warns Defendant that if he fails to
appear for his judgment debtor examination, the Court will
issue a bench warrant for his arrest.
Mercurio is instructed to bring with him to him to the
judgment debtor examination the following documents under his
control or the control of his agents:
financial statements prepared by or on behalf of Mercurio
from January 1, 2017, to the present.
original monthly bank statements of Mercurio from January 1,
2017, to the present.
original savings account pass books, certificates of deposit,
and trust certificates in the name of Mercurio January 1,
2017, to the present.
canceled checks drawn on any account established in the name
of Mercurio from January 1, 2017, to the present.
original negotiable instruments and negotiable securities in
the name of Mercurio from January 1, 2017, to the present.
evidence or other memoranda of any ownership interest of
Mercurio in any corporation, partnership, unincorporated
association or any business organized or conducted for the
production of income from January 1, 2017, to the present.
evidence or other memoranda of any income received by
Mercurio January 1, 2017, to the present, to include but not
limited to tax returns, insurance proceeds, or repayment of
evidence or other memoranda of any employer, or place of work
or employment of Mercurio from January 1, 2017, to the
present, including but not limited to ...