Allstate Insurance Company v. Barnett et al

Filing 184

ORDER Re Contempt 162 176 . Signed by Judge Edward M. Chen on 1/30/2012. (emcsec, COURT STAFF) (Filed on 1/30/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALLSTATE INSURANCE COMPANY,

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No. C-10-0077 EMC

Plaintiff,
ORDER RE CONTEMPT
v.
(Docket Nos. 162, 176)

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For the Northern District of California

United States District Court

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RICHARD BARNETT, et al.,

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Defendants.
___________________________________/

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Previously, the Court ordered Randy S. Perlman, counsel for Defendant Randy S. Perlman,

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to show cause why he should not be held in criminal contempt1 for failure to comply with the

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Court’s orders requiring a personal appearance at the final pretrial conference. See Docket No. 162

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(order). Mr. Perlman filed a response on November 18, 2011. See Docket No. 176 (declaration).

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Having considered that response, the Court hereby finds that Mr. Perlman has failed to show cause

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why he should not be held in criminal contempt.

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The fact that Mr. Barnett may not have funds to pay Mr. Perlman does not mean that Mr.

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Perlman himself does not have funds to make a personal appearance. The Court appreciates that Mr.

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Perlman is representing Mr. Barnett pro bono. But when an attorney agrees to pro bono

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representation, whether at the inception of the case or at some point midstream, he or she must

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“The primary difference between civil and criminal contempt is the intended effect of the
court’s order. A civil contempt order is conditional, designed to enforce the court’s decree or to
compensate for losses caused by noncompliance; criminal contempt is unconditional, designed to
punish, vindicate the court’s authority, and deter others.” Falstaff Brewing Corp. v. Miller Brewing
Co., 702 F.2d 770, 785 (9th Cir. 1983).

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reasonably expect to incur some costs for which he or she will not be paid. Furthermore, it is highly

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unlikely that Mr. Perlman’s attendance at one conference would be so cost prohibitive that it would

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put his practice in financial jeopardy. Indeed, at that point in the proceedings, Mr. Perlman was

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expecting to litigate a five-day trial in San Francisco.

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To the extent Mr. Perlman points out that the Court has, on prior occasions, allowed him to

Perlman to appearance telephonically. But that very fact should have underscored to Mr. Perlman

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that the Court did not take lightly a ruling that a personal appearance was necessary for the final

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pretrial conference. The Court deemed a personal appearance necessary because a final pretrial

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conference is a critical hearing -- one that shapes how the trial is to proceed, because there were

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For the Northern District of California

make telephonic appearances, that is true. The Court has on multiple occasions permitted Mr.

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United States District Court

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complex issues to be discussed at the hearing, and because Mr. Perlman had on behalf of his client

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filed a motion to continue the trial basically on the eve of the trial. Requiring a personal appearance

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in light of these circumstances was appropriate.

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Accordingly, the Court concludes that Mr. Perlman’s failure to make a personal appearance

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at the final pretrial conference, as required by multiple orders of the Court, is conduct warranting

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sanctions. Mr. Perlman is deemed in contempt of Court for his failure to comply with the Court’s

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orders and shall be required to pay a fine of $500 to the Clerk of the Court. The Court, however,

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shall suspend imposition of the $500 fine pending further order of the Court.

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IT IS SO ORDERED.

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Dated: January 30, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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