Deshazier v. Williams et al

Filing 78

ORDER DENYING Plaintiffs' Counsel's 70 Application for Relief from Court's Order of December 26, 2007, Awarding Monetary Sanctions, signed by Chief Judge Anthony W. Ishii on 1/12/2009. (Sondheim, M)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 On October 15, 2007, the Magistrate Judge issued findings of fact and 21 recommendations of law ("F&R's") that recommended terminating sanctions and 22 compensatory monetary sanctions based on the failure of Plaintiff's attorney, Kevin Little 23 ("Little"), to comply with discovery procedures. On December 26, 2007, the court issued an 24 order modifying in part the F&R's so that terminating sanctions were not applied as 25 recommended but adopting the Magistrate Judge's recommendation for monetary sanctions 26 against Little. The monetary sanctions were assessed to compensate Defendants for costs and 27 attorney fees resulting from Little's failure to timely provided notice of his inability to attend 28 scheduled depositions. In the court's order of December 26, 2007, the court noted that ) ) Plaintiff, ) ) v. ) ) HANFORD POLICE OFFICER DALE ) WILLIAMS, BADGE No. 121; ) HANFORD POLICE OFFICER MITCH ) SMITH, BADGE No. 39; POLICE ) SERGEANT RUSSELL HILYAND; and ) CITY OF HANFORD, CALIFORNIA, ) ) Defendants. ) ____________________________________ ) RANDY DeSHAZIER, CV F 06-0591 AWI SMS ORDER ON PLAINTIFFS' COUNSEL'S APPLICATION FOR RELIEF FROM COURT'S ORDER OF DECEMBER 26, 2007, AWARDING MONETARY SANCTIONS Doc. # 70 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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where, as here, the failure of a party or their attorney to attend a deposition is not substantially justified, the court is obliged to impose monetary sanctions to compensate both costs and attorney fees occasioned by the unjustified non-compliance. Fed. Rule Civ. Pro. 37(d). Little requests that the court modify or vacate its prior order awarding monetary sanctions based on Little's present inability to pay. The court, having previously found Little's non-compliance with discovery procedures was substantially not justified, has no legal basis for any modification to its prior order. As noted, the imposition of monetary sanctions in such circumstances to compensate for unnecessary costs and attorney fees pursuant to Rule 37(d) is mandatory. While the parties are free to make whatever accommodations they will, the court has no choice but to deny Little's request.

Little's request to vacate or modify the court's order of December 26, 2007, imposing of monetary sanctions is hereby DENIED.

IT IS SO ORDERED. Dated: 0m8i78 January 12, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

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