Dominguez et al v. Excel Manufacturing Co Inc

Filing 38

CERTIFICATION OF FACTS SUPPORTING ENTRY OF JUDGMENT OF CONTEMPT. Signed by Magistrate Judge Bernard Zimmerman on 8/11/2010. (bzsec, COURT STAFF) (Filed on 8/13/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A magistrate judge has the power to certify to a district judge facts supporting the entry of a judgment of contempt for misbehavior, such as disobeying a lawful order, which is serious or occurs outside the presence of the magistrate judge. 28 U.S.C. § 636(e)(6)(B)(i)-(ii). In that event, the magistrate judge "shall forthwith certify the facts to a district judge and may serve or cause to be served, upon any person whose behavior is brought into question under this paragraph, an 1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JUAN DOMINGUEZ, JUANA DOMINGUEZ,

Plaintiff(s), v. EXCEL MANUFACTURING CO. INC., ET. AL., Defendant.

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No. C09-3611 EDL (BZ)

CERTIFICATION OF FACTS SUPPORTING ENTRY OF JUDGMENT OF CONTEMPT

The undersigned hereby certifies the following facts to Magistrate Judge Elizabeth D. Laporte in support of the entry of a judgment of criminal contempt1 against defendant Excel

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Manufacturing Co. Inc. ("Excel"), its attorney in this action Laura Flynn, and its insurer Colony Insurance Company ("Colony"): 1. This is a products liability action for damages arising

out of an industrial accident that took place while plaintiff Juan Dominguez was working with a baler manufactured by defendant. As a result of the accident, Mr. Dominguez's right Additionally, Ms. Dominguez is bringing

leg was badly injured.

a loss of consortium claim. 2. By Order dated May 14, 2010, the parties were directed Doc

to appear at a settlement conference on August 10, 2010. #25, Order Scheduling Settlement Conference at 1.

My order Id at

mandated the appearance of each party and lead counsel. 2.

My order specifically required each "party who is not a

natural person [to] be represented by the person or persons not directly involved in the events which gave rise to the order requiring such person to appear before a district judge upon a day certain to show cause why that person should not be adjudged in contempt by reason of the facts so certified. The district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a district judge. 28 U.S.C. § 636(e)(6). The magistrate judge's authority under section 636(e) encompasses certification for criminal, as well as civil, contempt. See Taberer v. Armstrong World Indus., 954 F.2d 888 (3d Cir. 1992); Aldrige v. Young, 782 F. Supp. 1457 (D. Nev. 1991). Criminal contempt is appropriate where, as here, the relief requested is intended to punish past failures rather than to coerce future compliance. Taberer, 954 F.2d at 897; Aldridge, 782 F. Supp. at 1458. A magistrate judge presiding with the consent of the parties, exercises the contempt authority of a district judge. 28 U.S.C. § 636(e)(4). 2

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litigation but with full authority to negotiate a settlement." Id. My order further clarified that "[a] person who needs to

call another person not present before accepting, rejecting or making any settlement offer does not have full authority." Id.

Finally, my order required that "[a]n insured party shall appear with a representative of the carrier with full authority to negotiate up to the limits of coverage. The Court shall be Id.

notified immediately if the carrier declines to attend." 3.

Despite my order, no representative of Excel, or of I received no Instead, Excel

Colony, defendant Excel's insurer, was present. request from Excel to be excused from appearing.

inserted a footnote in its settlement conference statement which reads as follows: "[t]he parties have stipulated that Excel and its insurance carrier representative can appear at the settlement conference via telephone. Minnesota. Excel is located in Defendant's

Its carrier is located in Arizona."

Settlement Conference Statement at 1. 4. The following people appeared at the settlement

conference: (1) plaintiffs Juan Dominguez and Juana Dominguez, (2) plaintiffs' attorney Julio Ramos, (3) plaintiffs' worker's compensation counsel Ricardo De Alba, (4) attorney Bruce Turner for claimant State Compensation Insurance Fund, and (5) defendant's attorney Laura Flynn. It became clear during my

discussions with Ms. Flynn that she lacked full authority to settle the case. She was in telephone contact with At one point, I had my

representatives from Excel and Colony.

secretary place a conference call with Ms. Flynn, her client and its insurer. In my judgment, their absence at the conference 3

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was an impediment to achieving settlement. 5. Mr. Ramos objected to the non-attendance of Excel and Ms. Flynn replied that the parties had stipulated

its insurer.

to their non-attendance at the case management conference and that the Court approved the stipulation and ordered the conference. Ms. Flynn stated that this stipulation was made

orally during a May 11, 2010 conference before Judge Laporte. My intern listened to the recording of the May 11, 2010 conference and informs me that this claimed stipulation is not in the record. that hearing. 6. Mr. Ramos denied there was such a stipulation and has Doc #34. In Nor is it reflected in the Court's minutes of

since filed a declaration to that effect. 7.

The parties could not reach a settlement agreement.

part this was because defendant's representatives were not present and could not meaningfully participate in the negotiations or meet the plaintiffs. In part, this was because

the plaintiffs were concerned that defendants had engaged in a scheme to avoid a meaningful settlement conference, which they attended with two lawyers. I therefore request that Judge Laporte ORDER defendant Excel and its insurer Colony to show cause at a time and place she selects, why they should not be adjudged in contempt of court or otherwise sanctioned for their failures to comply with the Court's Order and to appear at the August 10, 2010 settlement conference. Additionally, I request that Judge

Laporte ORDER defendant's attorney Laura Flynn to show cause at a time and place Judge Laporte selects, why Ms. Flynn should not 4

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be adjudged in contempt of court or otherwise sanctioned for claiming that she and Mr. Ramos stipulated that neither Excel nor Colony had to attend the August 10, 2010 settlement conference and that Judge Laporte approved the stipulation, when there is no record of such a stipulation. Dated: August 11, 2010

Bernard Zimmerman United States Magistrate Judge

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