Dynacom Industries, Inc. v. Mainline Automotive Equipment Pty. Ltd. t/a Mainline Dynalog Dynamometers, et al.

Filing 12

ORDER to SHOW CAUSE signed by Magistrate Judge Deborah Barnes on 1/9/18: Motion for an order to show cause is granted 9 . Kert Miller shall appear in person on 2/9/2018 at 10:00 AM in Courtroom 27 (DB) before Magistrate Judge Deborah Barnes. On or before 1/26/2018, Kert Miller shall show cause in writing as to why he should not be sanctioned for failure to comply with the court's 9/22/2017 order. On or before 1/26/018, defendants shall file and serve on Kert Miller a memorandum addressing their request for contempt sanctions. On or before 2/2/ 2018, Kert Miller shall file any response to defendants' request for sanctions. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DYNOCOM INDUSTRIES, INC.,

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No. 2:17-mc-0121 KJM DB

Plaintiffs,
v.

ORDER TO SHOW CAUSE

MAINLINE AUTOMOTIVE
EQUIPMENT PTY. LTD. t/a MAINLINE
DYNOLOG DYNAMOMETERS, et al.,
Defendants.

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On September 22, 2017, the undersigned issued an order granting defendants’ August 25,

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2017 motion to compel, and ordering third party Kert Miller to produce responsive discovery to

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the defendants within twenty-one days. (ECF No. 7.) On December 5, 2017, defendants filed a

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motion seeking the issuance of an Order to Show Cause requiring Kert Miller to appear and show

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cause for his failure to comply with the September 22, 2017 order. (ECF No. 9.) Therein,

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defendants explain that the September 22, 2017 order was served on Miller, yet Miller has failed

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to comply with that order. (Id. at 5.)

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Rule 45(g) of the Federal Rules of Civil Procedure provides that “[t]he court for the

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district where compliance is required . . . may hold in contempt a person who, having been

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served, fails without adequate excuse to obey the subpoena or an order related to it.” “‘[T]he

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moving party has the burden of showing by clear and convincing evidence that the contemnors
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violated a specific and definite order of the court. The burden then shifts to the contemnors to

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demonstrate why they were unable to comply.’” Federal Trade Com’n v. Enforma Natural

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Products, Inc., 362 F.3d 1204, 1211 (9th Cir. 2004) (quoting FTC v. Affordable Media, LLC, 179

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F.3d 1228, 1239 (9th Cir. 1999)).

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Moreover, the failure of a party to comply with any order of the court “may be grounds

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for imposition by the Court of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” Local Rule 110. “T]he district court has ‘wide latitude in

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determining whether there has been a contemptuous defense of its order.’” Stone v. City and

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County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992) (quoting Gifford v. Heckler, 741

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F.2d 263, 266 (9th Cir. 1984)). However, “[d]ue process requires that a person facing contempt

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sanctions be given adequate notice and fair opportunity to be heard in civil contempt

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proceedings.” U.S. S.E.C. v. Hyatt, 621 F.3d 687, 694 (7th Cir. 2010).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendant’s December 5, 2017 motion for an order to show cause (ECF No. 9) is

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granted1;

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2. Kert Miller shall appear in person on Friday, February 9, 2018, at 10:00 a.m., at the

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United States District Court, 501 I Street, Sacramento, California, in Courtroom No. 27, before

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the undersigned;

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3. On or before January 26, 2018, Kert Miller shall show cause in writing as to why he
should not be sanctioned for failure to comply with the court’s September 22, 2017 order;

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4. On or before January 26, 2018, defendants shall file and serve on Kert Miller a
memorandum addressing their request for contempt sanctions;
5. On or before February 2, 2018, Kert Miller shall file any response to defendants’

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request for sanctions; and

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////

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Defendants’ request for attorneys’ fees and costs is premature, should be addressed in their
January 26, 2018 memorandum, and will be addressed by the undersigned at the February 9, 2018
hearing.
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6. The Clerk of the Court is directed to serve a copy of this order on Kert Miller at the
following address:
9060 Central Avenue
Orangevale, CA 95662

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Dated: January 9, 2018
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DLB:6
DB\orders\orders.civil\dynacom0121.osc.miller

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