Becker et al v. Wells Fargo Bank, NA, Inc. et al

Filing 76

ORDER signed by Judge Lawrence K. Karlton on 10/06/11 ORDERING that counsel for defendants is SANCTIONED in the amount of $1,000 that shall be paid w/i 30 days. Counsel shall file an affidavit accompanying the payment of this sanction which states that it is paid personally by counsel, out of personal funds, and is not and will not be billed, directly or indirectly, to the client, or in any way made the responsibility of the client, as attorneys' fees or costs. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNLY R. BECKER, THE
BECKER TRUST DATED
MARCH 25, 1991,

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NO. CIV. S-10-2799 LKK/KJN
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Plaintiffs,

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v.
O R D E R

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WELLS FARGO BANK, N.A.,
WACHOVIA MORTGAGE
CORPORATION; DOES 1-20,

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Defendants.
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/
I.

INTRODUCTION
On November 12, 2010, plaintiff Dennly R. Becker filed a

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motion for a preliminary injunction.

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timely response to the motion.

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the court issued an Order To Show Cause why defendants’ counsel

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should not be fined $150.

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the Order To Show Cause, and on January 11, 2011, the court

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sanctioned defendants’ counsel $150.

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Defendants failed to file a

Accordingly, on December 14, 2010,

Defendants’ counsel never responded to

Also on January 11, 2011, the court issued a further Order To
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Show Cause why defendants’ counsel should not be fined $1,000 or

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suffer a judgment for plaintiff, as a sanction for failing to

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respond to the December 14, 2010 Order To Show Cause.

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counsel timely responded, and on January 21, 2011, the court

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sanctioned defendants’ counsel in the reduced amount of $350.

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On

August

25,

2011,

plaintiff

filed

a

Defendants’

motion

for

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reconsideration of a prior order of this court.

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to file a timely response.

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court issued an Order To Show Cause why defendants’ counsel should
be

fined

$1,000

or

Defendants failed

Accordingly, on October 4, 2011, the

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not

suffer

a

judgment

for

plaintiff.

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Defendants’ counsel timely responded with a sworn declaration.

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II.

DISCUSSION

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Defendants’ counsel argues against sanctions on the grounds

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that (i) the pro se plaintiff's filings confused him, citing court

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docket entries from January 13, 2011 to September 12, 2011; (ii) by

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September 12, 2011, the reconsideration motion had become moot;

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(iii) the reconsideration motion should be taken off calendar

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because

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(iv) sanctions would be unfair because defendants’ counsel has

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“tried to work in good faith with Mr. Becker to get the pleadings

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straightened out.”

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of

a

subsequent

motion

filed

by

plaintiff;

and

None of these arguments explains counsel’s failure to file a

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timely response to the reconsideration motion.

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that “[t]he confusion here” was caused by plaintiff’s filings.

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Counsel

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overlapping filings have generated confusion.

is

correct

that

plaintiff’s

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multiple

Counsel asserts

and

sometimes

But he does not

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claim

that

this

confusion

caused

him

to

believe

that

the

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reconsideration motion had been removed from the court’s calendar

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(or even that he, in his confusion, mistakenly removed it from his

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own office scheduling calendar).

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the court’s calendar, it is unreasonable for counsel to argue that

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he could simply do nothing.

With the motion still pending on

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Counsel’s belief that the motion had become moot does not

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explain why he failed to file a timely response stating that the

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motion should be denied as moot.

Counsel’s belief that the motion

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should be taken off the calendar fails to explain why he did not

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file a timely response setting forth this belief, or a timely

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request that the motion be taken off calendar.

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“good faith efforts” to straighten out the pleadings explains

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nothing in regard to his own failure to file a timely response to

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the reconsideration motion.

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Finally, counsel’s

Counsel has failed, once again, to meet his obligations under

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the local rules.

In light of counsel’s repeated failures, the

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court has given due consideration to the sanction of a judgment for

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plaintiff. However, accepting counsel’s sworn declaration at face

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value, it appears that counsel believed that no response to the

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motion was necessary, no matter how grossly mistaken he was.

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court has therefore determined to impose only a fine.

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no mitigating circumstances, nor any real basis for counsel’s

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mistaken belief however, the court will not reduce the size of the

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fine.

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////
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The

There being

Accordingly, counsel for defendants is SANCTIONED in the

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amount of one thousand dollars ($1,000).

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to the Clerk of the Court no later than thirty (30) days from the

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date of this order.

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the

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personally by counsel, out of personal funds, and is not and will

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not be billed, directly or indirectly, to the client, or in any way

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made the responsibility of the client, as attorneys’ fees or costs.

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payment

of

Counsel shall file an affidavit accompanying

this

sanction

which

IT IS SO ORDERED.
DATED:

This sum shall be paid

October 6, 2011.

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states

that

it

is

paid