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Trustees of Operating Engineers Pension Trust v. Diversified Concrete Cutting, Inc.

United States District Court, D. Nevada

July 27, 2018

TRUSTEES OF THE OPERATING ENGINEERS PENSION TRUST, et al., Plaintiffs,
v.
DIVERSIFIED CONCRETE CUTTING, INC., et al., Defendants.

          ORDER

          GEORGE FOLEY, JR. UNITED STATES MAGISTRATE JUDGE

         This 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.

         On May 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 examination.

         Parties 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. 16(f)(2).

         Defendant 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.

         Defendant 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:

         a. All financial statements prepared by or on behalf of Mercurio from January 1, 2017, to the present.

         b. All original monthly bank statements of Mercurio from January 1, 2017, to the present.

         c. All original savings account pass books, certificates of deposit, and trust certificates in the name of Mercurio January 1, 2017, to the present.

         d. All canceled checks drawn on any account established in the name of Mercurio from January 1, 2017, to the present.

         e. All original negotiable instruments and negotiable securities in the name of Mercurio from January 1, 2017, to the present.

         f. All 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.

         g. All 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 loans.

         h. All 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 ...


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