Leonard v. Denny, et al

Filing 171

ORDER signed by Magistrate Judge Allison Claire on 10/29/18 DENYING 170 Motion to Strike; GRANTING defendants 14 days to submit a properly signed version of Robert Kersten's declaration; and GRANTING counsel for defendants 14 day to show cause why they should not be personally sanctioned $150.00 for repeatedly failing to comply with the rules and orders of this court. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID G. LEONARD,

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No. 2:12-cv-0915 TLN AC P

Plaintiff,
v.

ORDER

JIM DENNY, et al.,
Defendants.

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Plaintiff has filed a motion to strike the declaration of Robert Kersten which was

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submitted by defendants in support of their motion for summary judgment. ECF No. 170.

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Plaintiff argues that the declaration was defectively executed, lacks the personal knowledge

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necessary to authenticate the medical records relied on, and was submitted in bad faith. Id.

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Plaintiff also requests that he be awarded his expenses in bringing the motion. Id. at 32.

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Although it appears that plaintiff is correct that the declaration was not properly signed

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because it its electronic signature is not accompanied by a statement that counsel has the signed

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original (L.R. 131(f)), the court will not strike the declaration. Instead, defendants shall have an

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opportunity to remedy the defective declaration by filing one that is properly signed. It will not

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be necessary for defendants to resubmit the attachments to the declaration. Failure to submit a

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properly signed declaration will result in the declaration being disregarded. Plaintiff’s other

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objections to the declaration will be considered as part of his response to the motion for summary
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judgment. Plaintiff is advised that any further objections he has to defendants’ motion for

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summary judgment or its supporting documentation should be included in his response to the

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motion and not filed as separate motions. Any requests to extend the deadline to respond to

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defendants’ motion for summary judgment based on plaintiff filing piecemeal objections to the

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motion will be denied.

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Plaintiff has also requested monetary sanctions in the form of his costs in bringing the

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motion and cites Federal Rule of Civil Procedure 56(h) and this court’s previous admonition to

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defendants’ counsel that continued noncompliance with the rules and orders of the court would

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likely result in monetary sanctions. ECF No. 170 at 32. The request will be denied at this time.

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If, in considering the motion for summary judgment, the court determines that the declaration was

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submitted in bad faith, the request for expenses under Rule 56(h) may be reconsidered at that

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time. With respect to the court’s previous warning about sanctions, although counsel will be

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required to show cause why sanctions should not issue for their repeated non-compliance, any

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such sanctions will be payable to the court, not to plaintiff.

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“Failure of counsel . . . to comply with [the Local] Rules or with any order of the Court

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may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule

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or within the inherent power of the Court.” L.R. 110. District courts may impose “reasonable

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monetary sanctions against attorneys for violations of local rules when they are the offending

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parties.” Miranda v. S. Pac. Transp. Co., 710 F.2d 516, 521 (9th Cir. 1983). “[I]mposing a

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monetary penalty on counsel is an appropriate sanction considerably less severe than holding

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counsel in contempt, referring the incident to the client or bar association, or dismissing the case.”

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Id. When imposing monetary sanctions under local rules, counsel must have displayed “conduct

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amounting to recklessness, gross negligence, repeated—although unintentional—flouting of court

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rules, or willful misconduct.” Zambrano v. City of Tustin, 885 F.2d 1473, 1481 (9th Cir. 1989)

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(footnotes omitted). However, before monetary sanctions can be imposed, counsel must be given

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“reasonable notice, an opportunity to show cause to the contrary, and, if requested, a hearing.”

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Fed. R. App. P. 46(c); Miranda, 710 F.2d at 523 (before issuing sanctions, district court must

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provide attorneys with due process protections afforded by Fed. R. Civ. P. 46(c)). Accordingly,
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counsel for defendants has been notified of the potential for monetary sanctions and shall now

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have the opportunity to show cause why they should not be sanctioned $150.00 for their repeated

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failures to comply with rules and orders of this court as outlined in this order and the court’s

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August 23, 2018 order (ECF No. 162). Counsel may request a hearing on the matter if they so

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desire.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to strike the declaration of Robert Kersten and requests for costs in

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bringing the motion (ECF No. 170) are denied.

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2. Within fourteen days of the filing of this order, defendants must submit a properly

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signed version of Robert Kersten’s declaration or the declaration will be disregarded. It is not

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necessary for defendants to resubmit the attachments to the declaration.

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3. Within fourteen days of the filing of this order, counsel for defendants shall show

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cause why they should not be personally sanctioned $150.00, payable to the Clerk of the Court

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and not transmittable to the client by way of a charge of attorney’s fees and/or costs, for

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repeatedly failing to comply with the rules and orders of this court.

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DATED: October 29, 2018

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