Bond Safeguard Insurance Company v. Jimmy Camp Development, Inc.

Filing 11

ORDER to SHOW CAUSE signed by Magistrate Judge Kendall J. Newman on 2/19/2014 ORDERING third party witnesses Deborah Sweeney and Molly Floto, as well as their attorney Brian Barrad, shall SHOW CAUSE in writing no later than 3/3/2014, why contempt san ctions should not be issued and monetary sanctions imposed against them based on their alleged failure to comply with the subpoenas at issue and the court's 12/6/2013 order; a hearing on the Order to Show Cause is SET for 3/13/2014 at 10:00 a.m. in Courtroom 25 (KJN); all counsel shall personally appear at the hearing with no telephonic appearances permitted; furthermore, Deborah Sweeney and Molly Floto shall personally appear at the hearing for potential testimony. Failure of the third par ty witnesses and their counsel to file a timely written response to the Order to Show Cause and/or to personally appear at the hearing may result in a summary finding of contempt (civil or criminal), including monetary sanctions and/or the potential issuance of bench warrants for their arrest; parties shall promtly advise the court of any settlement of this matter; Clerk shall add Mr. Brian S. Barrad to the docket as counsel for third party witnesses Deborah Sweeney and Molly Floto; Clerk shall additionally serve this order on Mr. Barrad by U.S. Mail. (Waggoner, D)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BOND SAFEGUARD INSURANCE
COMPANY,
Plaintiff,

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ORDER AND ORDER TO SHOW CAUSE
v.

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No. 2:13-mc-0115-TLN-KJN

JIMMY CAMP DEVELOPMENT, INC.,
Defendant.

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This miscellaneous action and motion for an order compelling the compliance by third

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party witnesses Deborah Sweeney and Molly Floto with subpoenas to produce documents and/or

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for contempt sanctions were initially filed on November 13, 2013. (ECF No. 1.)1 On December

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6, 2013, following a hearing on December 5, 2013, the court granted in part plaintiff Bond

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Safeguard Insurance Company’s motion to compel along the terms outlined in that order. (ECF

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No. 6.)
Presently pending before the court is plaintiff Bond Safeguard Insurance Company’s

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application for an order to show cause why contempt citations should not be issued and monetary

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sanctions imposed against third party witnesses Deborah Sweeney and Molly Floto, as well as

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The principal action in relation to which these subpoenas were issued is venued in the United
States District Court for the District of Colorado. See Bond Safeguard Insurance Company v. El
Paso County et al., 1:11-cv-2547-CMA-KLM (D. Colo.).

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their new attorney Brian Barrad,2 based on their alleged failure to comply with the subpoenas and

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the court’s December 6, 2013 order. (ECF No. 9.) After review of the papers in support of the

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application, and without making any findings or determinations with respect to the merits of the

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application at this juncture, IT IS HEREBY ORDERED that:

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1. Third party witnesses Deborah Sweeney and Molly Floto, as well as their attorney

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Brian Barrad, shall show cause why contempt citations should not be issued and

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monetary sanctions imposed against them based on their alleged failure to comply

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with the subpoenas at issue and the court’s December 6, 2013 order.

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2. Deborah Sweeney, Molly Floto, and counsel Brian Barrad shall file a written response

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to the order to show cause, supported by any appropriate declarations and legal

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authorities, no later than March 3, 2014.

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3. A hearing on the order to show cause is set for Thursday March 13, 2014, at 10:00

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a.m., in Courtroom No. 25 before the undersigned. All counsel shall personally

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appear at the hearing, with no telephonic appearances permitted. Furthermore,

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Deborah Sweeney and Molly Floto shall personally appear at the hearing for potential

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testimony.

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4. Failure of the third party witnesses and their counsel to file a timely written response

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to the order to show cause and/or to personally appear at the hearing may result in a

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summary finding of contempt (civil or criminal), including monetary sanctions and/or

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The third party witnesses were formerly represented by attorney W. Austin Cooper, who
according to the website of the California State Bar, was ordered inactive on October 26, 2013,
and is no longer eligible to practice law in California. See http://www.calbar.ca.gov. At the
December 5, 2013 hearing, Mr. Barrad clarified that he was taking over some of Mr. Cooper’s
other cases, but that he had not, at that point, been retained to represent Ms. Sweeney or Ms.
Floto, nor had he spoken to them. He indicated that he was merely making a special appearance
for the third party witnesses and Mr. Cooper as a courtesy. In the court’s December 6, 2013
order, the court directed that “[i]f Mr. Barrad is ultimately retained to represent Deborah Sweeney
and Molly Floto, he shall file a notice of appearance of counsel to that effect....” (ECF No. 6 at
3.) Although Mr. Barrad failed to do so, the correspondence between Mr. Barrad and plaintiff’s
counsel attached to the application clearly demonstrates that Mr. Barrad now represents Sweeney
and Floto. Accordingly, the court directs the Clerk of Court to add Mr. Barrad to the docket as
counsel of record for the third party witnesses, and to include him in electronic service of all
future court documents in this case.
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the potential issuance of bench warrants for their arrest.

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5. The parties shall promptly advise the court of any settlement of this matter.

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6. The Clerk of Court shall add Mr. Brian S. Barrad, Law Offices of Brian S. Barrad,

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1455 Response Road, Suite 120, Sacramento CA 95815 [E-mail:

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[e-mail]; Telephone: [phone]], to the docket as counsel for

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third party witnesses Deborah Sweeney and Molly Floto. If he has not already done

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so, Mr. Barrad shall ensure that he is familiar with all obligations of counsel under the

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court’s Local Rules, including enrollment in the court’s electronic filing system

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(CM/ECF).

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7. Out of abundance of caution, and in the event that Mr. Barrad does not yet have access

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to the CM/ECF system, the Clerk of Court shall serve a copy of the instant order on

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Mr. Barrad by U.S. Mail at the address listed above.

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IT IS SO ORDERED.
Dated: February 19, 2014

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