Johnson v. Yaghoubian et al

Filing 97

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/03/19 ORDERING within fourteen days of this order, plaintiffs counsel shall pay a total of $250.00 in monetary sanctions to the Clerk of Court for failing to comply with the Local Rules of this court. (cc: Financial)(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SCOTT JOHNSON,

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No. 2:16-cv-02299-TLN-CKD (PS)

Plaintiff,
v.

ORDER

MAZYAR YAGHOUBIAN, et al.
Defendants.

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On December 14, 2018, the court ordered plaintiff’s counsel to show cause in writing why

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he should not be sanctioned $250.00 for failing to comply with the Local Rules of this court,

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when he failed to file a timely opposition to defendants’ motion to vacate. (ECF No. 95.)

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Plaintiff’s counsel responded to the order to show cause on December 28, 2018. (ECF No. 96.)

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After review of the briefing, the relevant portions of the record, and the relevant legal standards,

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and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

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Default judgment was entered against all defendants on January 8, 2018. (ECF No. 54.)

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After a motion to enforce the judgment, defendant Camp was ordered to appear for a judgment

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debtor exam, which was continued twice to October 3, 2018, and Camp failed to appear. (ECF

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Nos. 72, 73, 77, 78, 80.)

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Defendants Camp and Ahmed subsequently filed a motion to vacate the judgment on
October 25, 2018. (ECF No. 81.) Plaintiff filed an exceptionally late opposition on December
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11, 2018, on the eve of the hearing. (ECF No. 89.) Plaintiff’s attorney, Dennis Price, explained

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in an attached declaration that the opposition was late due to a malware attack suffered by his law

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firm that was not resolved until November of 2018. (ECF No. 89-1 at 1-2.) Despite the malware

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attack, on November 2, 2018, plaintiff was able to submit a proposed certification of facts of

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contempt based upon Camp’s failure to appear at the judgment debtor exam. (ECF No. 82.)
In response to the court’s order to show cause, Mr. Price maintains that the error was due

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to the malware attack that briefly shutdown his entire firm’s hardware. According to Mr. Price,

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[w]hile full functionality was restored in November 2018, many
matters simply were unable to be properly calendared. In this case,
discovering the missed deadline was a result of review of the file as
a result of the hearing having been calendared, but the opposition
deadline not similarly being properly calendared. As the hearing had
only been listed as a judgment enforcement hearing, it would not
naturally have an opposition attached to it. As a result, the opposition
was not filed until preparing for the hearing. Despite the fact
Creditor was able to file his proposed certification of facts on
November 2, 2018, this did not correct the missed calendaring date.
The certification of facts was triggered by a different incident than
the motion filing: the certification of facts was a result of
nonappearance at the examination. The motion was separately filed
without an appearance by our office, thus it getting missed due to the
calendaring difficulties during the outage and as a result they were
not naturally linked.

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(ECF No. 96 at 2.)

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The Local Rules direct that an “[o]pposition, if any, to the granting of the motion shall be

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in writing and shall be filed and served not less than fourteen (14) days preceding the noticed (or

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continued) hearing date. . . . No party will be entitled to be heard in opposition to a motion at oral

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arguments if opposition to the motion has not been timely filed by that party.” E.D. Cal. L.R.

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230(c).
The malware attack that was resolved in November does not excuse plaintiff’s failure to

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file a timely opposition to defendant’s motion to vacate. The court appreciates Mr. Price’s

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explanation of events, but finds his excuse to be lacking. While the court understands that it is

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the firm’s practice to calendar each individual matter in a case separately, such calendaring

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practices do not excuse the firm’s failure to file a timely opposition here.

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Indeed, if plaintiff’s attorney had reviewed the docket when filing the certification of facts

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on November 2, 2018, then he would have noticed the pending motion to vacate. Moreover, the

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court’s November 7, 2018 order regarding plaintiff’s proposed certification explicitly noted that

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“[b]ecause the court is also hearing defendants’ motion to vacate judgment on December 12,

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2018, a continued judgment debtor examination will not be set at this time.” (ECF No. 83 at 2.)

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A timely opposition was due on November 28, 2018, three weeks after the court’s order.

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Therefore, the court concludes that plaintiff had ample notice of defendant’s motion to vacate,

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after the malware issue had been resolved, and inexcusably failed to file a timely opposition.

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Accordingly, IT IS HEREBY ORDERED that:
1. Within fourteen days of this order, plaintiff’s counsel shall pay a total of $250.00 in

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monetary sanctions to the Clerk of Court for failing to comply with the Local Rules of

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this court.

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Dated: January 3, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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