Avazian v. Beers et al

Filing 7

ORDER signed by Judge Garland E. Burrell, Jr on 3/28/2014 re: 6 MOTION to Dismiss SANCTIONS filed by Gevorg Avazian; Although Plaintiffs counsel's and his staff's unfamiliarity with the Court's ECF system does not excuse Plaintif f's counsel's referenced failures, the Court will not impose a sanction this time in light of the nature of Mr. Lehrman's assurances that this mishap will not happen again. Therefore, the Clerk's Office shall return to Plaintiffs counsel's his payment of five hundred dollars. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Avazian, Gevorg
A070917333,
Plaintiff,

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ORDER RE MONETARY SANCTION

v.

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No. 2:13-cv-02589-GEB-AC

Rand BEERS, Acting Secretary
of Department of Homeland
Security; Alejandro MAYORKAS,
Director, U.S. Citizenship
and Immigration Services;
Mari-Carmen JORDAN, Director,
U.S. Citizenship and
Immigration Services
Sacramento Office; and
Michael C. BIGGS, Field
Officer Director, USCIS,
Sacramento Office,

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Defendants.

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An Order Imposing Monetary Sanctions filed March 21,

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2014,

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hundred

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(Order

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reflects that Mr. Lehrman timely paid the monetary sanction as

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ordered. Mr. Lehrman also failed to timely respond to the OSC

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involved

sanctioned
dollars
Imposing

with

Plaintiff‟s
for

failing

Monetary

the

attorney,
to

timely

Sanctions,

sanction,

and

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1

Douglas
file

ECF

No.

indicates

a

Lehrman
status

5.)

in

report.

The

his

five

docket

untimely

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response to the OSC and sanction, that he is not personally

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responsible for understanding applicable rules of practice in

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this court.

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His late response was filed on March 27, 2014, in a

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filing

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monetary sanctions order, and assumes he could have an expedited

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hearing scheduled, even though he is the sole blame for the

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sanction

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hearing is not justified and is denied.

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that

he

In

essentially

received.

support

seeks

Mr.

of

reconsideration

Lehrman‟s

the

request

request

for

of

for

the

an

This case was the first time since 2008
that Counsel had used the Pacer e-mailing
account and mistakes resulted due to having
an
inactive
password
and
errors
which
resulted in our failure to receive complete
notices in this case. Counsel‟s failure to
reply was due to . . . mistakes in accessing
documents contained in our office‟s Pacer
electronic filing account. These mistakes
resulted in counsel‟s failure to calendar the
date of the Pretrial Conference Statement
that was due 14 days prior to the conference
and to Respond to the Court‟s Order to Show
Cause. . . .
. . . .
Counsel is humbly requesting his Honor
to waive or lower sanctions on counsel due to
his
mistake
and
inadvertence
in
not
responding
to
the
electronic
notices
properly. It was not intentional nor in
blatant
disregard
or
respect
for
this
court . . . .
I will strive to master the electronic
filing requirements and timely respond to all
deadlines ordered by the court. I have not
been sanctioned by this court nor any other
court in my 32 years of practice.

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expedited

reconsideration,

Lehrman avers:

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Court‟s

Mr.

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For the foregoing reasons, Counsel urges
your Honor to grant his request that monetary
sanctions be dismissed against Counsel and
forgive his failure to respond on a timely
basis . . . .

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(Pl.‟s Mot. to Dismiss Monetary Sanctions 2:10-4:4.)

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In essence, Plaintiff‟s counsel‟s excuse for failing to

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timely file a status report, and for his untimely response to the

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OSC, is his and his staff‟s lack of familiarity with the Court‟s

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Electronic

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[Plaintiff‟s counsel‟s use of the Court‟s ECF System] is rare or

Case

Filing

is

no

system.

excuse

.

.

.

“The

.”

fact

Dela

that

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infrequent,

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Scottsdale Mem‟l Health Sys., Inc., 136 F.3d 1241, 1244 (9th Cir.

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1998).

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however,

(“ECF”)

Rosa

v.

[An] attorney practicing law in [this] court
[is expected] to become familiar with and
follow rules applicable to practice in this
court. It is incumbent upon an attorney
practicing in [this court] . . . to secure
and study . . . the local rules of this
[court] so that he or she will know what is
expected by the court, the form in which a
case is presented, and the consequences
inherent in noncompliance. Such behavior is
not only a mark of elementary professional
competence, but is common sense to attorneys
seeking to zealously represent the interests
of their clients.

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Id. Since 2005, “all cases filed and pending in the Eastern

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District of California [have been] subject to electronic filing

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[and] service.” (Form Pet. by Att‟y for Admis. to E. Dist. of

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Cal.)

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Plaintiff‟s

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Court‟s ECF system. (Id.) In registering for ECF usage, attorneys

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are

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[CM/ECF User‟s Manual] in order to understand electronic filing

To

practice
counsel

instructed

to

in

the

Eastern

was

required

“periodically

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to

District

of

register

for

access

the[

Local

California,
use

of

Rules]

the

and

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requirements.” (Id.)

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Further,

is

choose

certainly

to

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documents and calendaring of deadlines] to paralegals or other

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associates, . . . it should never be forgotten that the attorney

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of

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Rosa, 136 F.3d at 1244.

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“The

is

ultimately

cogs

of

responsible

the

wheel

delegate

understandable

that

record

frequently

“[i]t

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attorneys

although

for

of

[the

[those

justice

filing

tasks].”

move

much

of

Dela

more

smoothly when attorneys who practice in this court follow the

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rules

of

practice

and

procedure”

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that

have

been

“carefully

developed and adopted.” Id.

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Rules are rules-and the parties must play by
them. . . . [A] district judge must often be
firm
in
managing
crowded
dockets
and
demanding adherence to announced deadlines.
If he or she sets a reasonable due date,
parties should not be allowed casually to
flout
it
or
painlessly
to
escape
the
foreseeable consequences of noncompliance.

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Legault v. Zambarano, 105 F.3d 24, 29 (1st Cir. 1997) (quoting
Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.
1990)) (internal quotation marks omitted); see also Ayers v. City
of

Richmond,

895

F.2d

1267,

1270

(9th

Cir.

1990)

(affirming

sanction of lawyer for failure to attend a settlement conference
because “the date „slipped by him‟”).
Although
unfamiliarity

Plaintiff‟s
the

with

counsel‟s
ECF

Court‟s

and

system

his

does

not

staff‟s
excuse

Plaintiff‟s counsel‟s referenced failures, the Court will not
impose

a

Lehrman‟s

sanction

this

assurances

time

that

in

this

light

mishap
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of
will

the
not

nature
happen

of

Mr.

again.

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Therefore,

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counsel‟s his payment of five hundred dollars.

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Dated:

the

Clerk‟s

Office

March 28, 2014

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shall

return

to

Plaintiff‟s