Hopson v. Montanez et al

Filing 40

ORDER Discharging Order to Show Cause 34 , signed by Magistrate Judge Stanley A. Boone on 2/8/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CYNTHIA HOPSON,
Plaintiff,

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Case No. 1:15-cv-00803-SAB
ORDER DISCHARGING ORDER TO
SHOW CAUSE

v.
(ECF Nos. 34, 35, 37, 38)

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ELIASER MONTANEZ, et al.,
Defendants.

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Plaintiff Cynthia Hopson filed this action on May 26, 2015, against Defendants Eliaser

18 Montanez, John Simon, and Rosemary Simon alleging violation of Title III of the Americans
19 with Disabilities Act of 1990; the Unruh Civil Rights Act; and the California Disabled Persons
20 Act. On September 19, 2016, Plaintiff filed a notice of settlement and the parties were provided
21 with forty-five days to file dispositive documents. On December 30, 2016, Plaintiff filed a
22 request to withdraw the notice of settlement and an order issued setting a mandatory scheduling
23 conference for January 17, 2017.
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Defense counsel Michael Warda failed to appear for the January 17, 2017 scheduling

25 conference and an order issued requiring him to show cause why sanctions should not issue for
26 the failure to appear. On January 19, 2017, a scheduling order issued. On January 31, 2017,
27 defense counsel filed a response to the order to show cause. On February 1, 2017, Plaintiff filed
28 a reply to Mr. Warda’s response.

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Mr. Warda responds that the scheduling conference was scheduled and was on his

2 calendar and he was out of the office and unable to be reached by his office staff. He misread his
3 calendar on his mobile device and did not realize that the scheduling conference was set for
4 January 17, 2017.

Plaintiff counters that Mr. Warda has continually failed to respond to

5 Plaintiff’s communications, and is misrepresenting to the Court the original agreement to settle
6 this action. Mr. Warda personally appeared for a hearing on February 8, 2017, before the
7 undersigned. Counsel Daniel Malakauskas appeared telephonically for Plaintiff.
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The Court has the authority under Rule 16(a) of the Federal Rules of Civil Procedure to

9 order attorneys to appear for pretrial conferences, including a scheduling conference. Fed. R.
10 Civ. P. 16(a)(2). Rule 16(f) of the Federal Rule of Civil Procedure provides that the court may,
11 on motion or on its own, issue any just orders if a party fails to appear at a scheduling or any
12 other pretrial conference. Since the purpose of Rule 16 is to “ ‘to encourage forceful judicial
13 management,’ a court has broad discretion to sanction attorneys and parties who fail to comply
14 with the court's reasonable case management orders.” M.O.R.E., LLC v. United States, No. 1215 CV-03609-JST, 2015 WL 580554, at *2 (N.D. Cal. Feb. 11, 2015).

While imposition of

16 sanctions under Rule 16 requires notice and an opportunity to be heard, Ayers v. City of
17 Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990), it does not require a finding of bad faith, Lucas
18 Auto. Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001).
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Moreover, the Court has inherent power to impose monetary or other sanctions in order

20 to control the conduct of the proceedings, protect the “orderly administration of justice” and to
21 maintain “the authority and dignity of the court.” Roadway Express, Inc. v. Piper, 447 U.S. 752,
22 764-65 (1980); accord Chambers v. Nasco, Inc., 501 U.S. 32, 43-46 (1991); Fink v. Gomez, 239
23 F.3d 989, 991 (9th Cir. 2001).
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The Court shall discharge the order to show cause in this instance, but the Court is

25 concerned regarding the apparent lack of professional courtesy that is being accorded to
26 Plaintiff’s counsel in this action. Plaintiff’s counsel has submitted a declaration showing that
27 communication has been attempted on over twenty occasions to defendant’s counsel has not
28 responded. (Decl. of Daniel Malakauskas, ECF No. 38.) Given counsel’s failure to appear in

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1 this action, the Court can come to no other conclusion but that counsel is willfully refusing to
2 participate in litigation of this action.
Mr. Warda is advised that any future failures to comply with orders of this Court will

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4 result in monetary sanctions against counsel. Mr. Warda seeks to have the Court reset the
5 scheduling conference, however the scheduling order issued on January 19, 2017, a week and a
6 half prior to counsel filing his response to the order to show cause in this action. The Court finds
7 that counsel’s lack of knowledge that the scheduling order issued further demonstrates his lack of
8 participation in litigating this action.

The parties are expected to adhere to the deadlines

9 established in the January 19, 2017 scheduling order, and the parties will be required to
10 demonstrate good cause for any request to amend the scheduled dates.
Based on the foregoing, IT IS HEREBY ORDERED that the order to show cause filed

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12 January 17, 2017, shall be DISCHARGED.
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IT IS SO ORDERED.

15 Dated:

February 8, 2017
UNITED STATES MAGISTRATE JUDGE

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