Chin v. Wal-Mart Stores, Inc.

Filing 32

ORDER Imposing Monetary Sanctions re 24 Order to Show Cause. Signed by Judge Thelton E. Henderson on 10/27/14. (tehlc2, COURT STAFF) (Filed on 10/27/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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J.D. CHIN,
Plaintiff,

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v.
WAL-MART STORES, INC.,

Case No. 14-cv-02538-TEH
ORDER IMPOSING MONETARY
SANCTIONS

Defendant.

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Finding good cause as provided below, the Court hereby imposes monetary

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United States District Court
Northern District of California

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sanctions upon Attorney Arkady Itkin in the amount of $150 to be paid into the Court on

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or before November 3, 2014.

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BACKGROUND
On September 5, 2014, the parties in this case were provided with a Clerk’s Notice

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informing them that the initial Case Management Conference (“CMC”) previously

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scheduled for September 15, 2014, had been continued to September 29, 2014, at 1:30 PM

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in Courtroom 12. (Docket No. 19). The parties’ Joint Case Management Conference

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Statement was filed on September 19, 2014, and acknowledges this date, time, and

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location for the Case Management Conference. (Docket No. 20). Nonetheless, without

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providing any notice or explanation to the Court, Plaintiff’s counsel, Arkady Itkin, failed to

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attend the CMC. Consequently, on September 30, 2014, the Court issued an Order for Mr.

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Itkin to appear in court and show cause for why sanctions should not issue for his failure to

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appear. (Docket No. 24). The Order to Show Cause (“OSC”) also required Mr. Itkin to

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file a written response before the Hearing, which he did on October 14. (Docket No. 26).

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On October 16, Mr. Itkin requested this Court to continue the OSC Hearing set for

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October 27, citing a scheduling conflict with a mandatory settlement conference in another

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matter. (Docket No. 27). This request was denied. (Docket No. 28). Mr. Itkin

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subsequently requested permission to appear at the OSC Hearing by telephone, despite the

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fact that the OSC explicitly stated that telephonic appearances would not be allowed.

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(Docket No. 29). This request was similarly denied. (Docket No. 30). Since issuing the

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original OSC, the Court’s Deputy has received multiple phone calls from Mr. Itkin, some

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explicitly questioning the decisions and authority of the Court and insinuating that Mr.

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Itkin would not appear at the OSC Hearing despite the Court’s Orders. Nonetheless, on

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October 27, 2014, Mr. Itkin appeared before the Court to provide an explanation for his

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behavior.

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United States District Court
Northern District of California

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LEGAL STANDARD
The Civil Local Rules for the Northern District of California provides for the

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sanctioning of attorneys for violations of the local rules. Civil L.R. 1-4. In relevant part,

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the Rules require that, “[u]nless excused by the Judge, lead trial counsel for each party

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must attend the initial Case Management Conference.” Civil L.R. 16-10(a). Further, the

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Standards of Professional Conduct section of the Local Rules states that attorneys must

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comply with the Local Rules, maintain the respect due to the Court and its judicial officers,

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and practice with the honesty, care, and decorum required for the fair and efficient

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administration of justice. Civil L.R. 11-4.

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The Court may also impose monetary sanctions under its inherent power to “police

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itself.” Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991). To deter abuse of the

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judicial process, a court may impose monetary sanctions “for the willful disobedience of a

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court order.” Id. at 45 (internal quotation marks omitted). Additionally, “a court may

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assess attorneys’ fees when a party has acted in bad faith, vexatiously, wantonly, or for

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oppressive reasons.” Id. at 45-46 (internal quotation marks omitted). “As long as a party

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receives an appropriate hearing . . . the party may be sanctioned for abuses of process

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occurring beyond the courtroom . . . .” Id. at 57. To award sanctions under its inherent

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powers, the court must “specifically find[] bad faith or conduct tantamount to bad faith.

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Sanctions are available for a variety of types of willful actions, including recklessness
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when combined with an additional factor such as frivolousness, harassment, or an

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improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001).

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Finally, a Court can issue sanctions under Federal Rule of Civil Procedure 11(b)

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where an attorney has submitted motions or other papers that are submitted for any

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improper purpose, such as to harass or cause unnecessary delay. Such a sanction can

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include nonmonetary directives, an order to pay a penalty into the Court, or attorneys’ fees.

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Fed. R. Civ. P. 11(c)(4). If imposed on the Court’s initiative, the Court must order the

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attorney to show cause why conduct specifically described in the order has not violated

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this Rule. Fed. R. Civ. P. 11(c)(3).

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United States District Court
Northern District of California

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DISCUSSION
In failing to appear at the initial Case Management Conference held on September

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29, 2014, Mr. Itkin was in clear violation of the Civil Local Rules for the Northern District

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of California. See Civil L.R. 16-10(a) (requiring lead trial counsel to attend the initial

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CMC, absent excuse from the Court). Additionally, Mr. Itkin’s subsequent

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correspondence with this Court, including multiple phone calls and at least one frivolous

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filing for a telephonic appearance, has fallen below the required Standards of Professional

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Conduct for practice in this District. See Civil L.R. 11-4 (requiring attorneys to maintain

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the respect due to the Court and its judicial officers, and to practice with the honesty, care,

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and decorum required for the fair and efficient administration of justice). As such, this

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Court is within its authority to sanction Mr. Itkin pursuant to the Local Rules. See Civil

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L.R. 1-4 (providing sanctions for failure to comply with the Local Rules).

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The Court finds additional authority to sanction Mr. Itkin in its inherent authority to

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police itself, ensure the efficient administration of justice, and deter abuse of the judicial

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process as provided in Chambers v. NASCO, Inc., 501 U.S. 32 (1991), and its progeny.

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Mr. Itkin’s behavior, especially that undertaken during conversations with the Court’s

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deputy, is tantamount to bad faith. On multiple occasions, Mr. Itkin has questioned this

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Court’s decisions, asked whether he could speak with someone that has authority over the
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Court, and insinuated that he would not follow the Court’s order to appear and show cause.

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This reckless, frivolous, and harassing conduct has taxed the Court’s time and patience,

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and justifies the imposition of a modest monetary sanction aimed to deter such impropriety

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in the future.
Finally, the Court has authority to sanction Mr. Itkin under Federal Rule of Civil

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Procedure 11 for submitting a request to appear by telephone despite the OSC’s specific

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foreclosure of such an appearance, as well as a denial of this request by telephone.

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Coupled with Mr. Itkin’s other behavior, the Court would be reasonable in finding that this

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request was filed for an improper purpose, such as to harass or cause unnecessary delay.

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Fed. R. Civ. P. 11(b)(1). As required by this Rule, after receiving Mr. Itkin’s written and

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United States District Court
Northern District of California

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oral response to the OSC, the Court has provided Mr. Itkin sufficient due process before

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ordering him to pay a penalty into the Court. Fed. R. Civ. P. 11(c)(3)-(4).

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CONCLUSION
Having considered Mr. Itkin’s written and oral response to the Order to Show

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Cause, it is hereby ORDERED that Mr. Itkin shall pay into the Court monetary sanctions

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in the amount of $150 on or before November 3, 2014.

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IT IS SO ORDERED.

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Dated: 10/27/14

_____________________________________
THELTON E. HENDERSON
United States District Judge

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