Somers v. Digital Realty Trust Inc et al

Filing 315

ORDER Denying 313 Plaintiff's Motion to Continue Hearing on Motion for Sanctions; ORDER TO SHOW CAUSE. Show Cause Response due by 5/11/2018. Signed by Judge Kandis A. Westmore on 4/27/2018. (kawlc2, COURT STAFF) (Filed on 4/27/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAUL SOMERS,
Plaintiff,

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v.

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DIGITAL REALTY TRUST INC, et al.,

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United States District Court
Northern District of California

Case No. 14-cv-05180-EMC (KAW)

Defendants.

ORDER DENYING PLAINTIFF'S
MOTION TO CONTINUE HEARING
ON MOTION FOR SANCTIONS;
ORDER TO SHOW CAUSE
Re: Dkt. No. 313

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Pending before the Court are Defendants' motion for sanctions and Plaintiff's motion for

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recusal. (Dkt. Nos. 271, 288.) The motions were originally set for hearing on April 19, 2018. On

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April 18, 2018, Plaintiff Paul Somers filed a letter seeking a second extension of time1 to file his

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reply in support of his motion for recusal, and asking that future hearings be put on hold. (Dkt.

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No. 306 at 1.) That same day, the Court denied the request for an extension of time, and stated

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that the April 19, 2018 hearing would go forward. (Dkt. No. 307 at 2.)

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On April 19, 2018, at 12:58 p.m., approximately half an hour before the scheduled hearing,

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Plaintiff e-mailed the Court stating that he had fallen ill the prior day and was "now being

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admitted to [the] hospital," and that "[t]he hearing for later this afternoon will have to be

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continued." (Dkt. No. 308.) The Court then deemed the motion for recusal suitable for

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disposition without hearing pursuant to Civil Local Rule 7-1(b), and vacated the April 19, 2018

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hearing on that matter. (Dkt. No. 309 at 1.) With respect to Defendants' motion for sanctions, the

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Court permitted Plaintiff to file a request to continue the hearing by April 26, 2018, but stated that

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"[t]he request must be accompanied by a declaration under penalty of perjury, and include

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The Court previously granted Plaintiff a one-week extension to file his reply brief due to
technological difficulties. (Dkt. No. 303; see also Dkt. No. 300 at 1.)

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extrinsic proof of Plaintiff's illness and subsequent hospitalization, i.e., a hospital receipt or similar

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record." (Id.) Unfortunately, defense counsel was already on his way to the hearing and did not

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see the court's order issued less than ten minutes before the hearing was to begin. (Ashe Decl. ¶ 9,

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Dkt. No. 314-1.) When defense counsel appeared for the hearing, the Court informed him that

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Plaintiff would not be appearing due to an alleged illness.

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On April 26, 2018, Plaintiff filed a proposed order for a continuance of the hearing on

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Defendants' motion for sanctions. (Dkt. No. 313.) Plaintiff did not include a declaration or

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extrinsic proof of his illness and subsequent hospitalization, as required by the Court's April 19,

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2018 order. (Id.; see also Dkt. No. 309 at 1.) On April 27, 2018, Defendants filed an opposition

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United States District Court
Northern District of California

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to Plaintiff's request for a continuance. (Dkt. No. 314.)
Plaintiff has failed to comply with the Court's order to provide proof of his illness and

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subsequent hospitalization, which was ostensibly the reason for Plaintiff's failure to appear at the

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April 19, 2018 hearing. Accordingly, the Court DENIES Plaintiff's motion to continue the hearing

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on Defendants' motion for sanctions. The Court deems Defendants' motion for sanctions suitable

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for disposition without hearing pursuant to Civil Local Rule 7-1(b), and will decide Defendants'

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motion on the papers.

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Additionally, Defendants incurred $5,625 preparing for and attending the April 19, 2018

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hearing. (Ashe Decl. ¶ 7.) As Defendants correctly point out, those attorney's fees would not have

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been incurred if Plaintiff had timely informed Defendants and the Court of his illness the prior

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day, instead of waiting until half an hour before the hearing to state that he could not attend.

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Moreover, Plaintiff has failed to substantiate his claim of illness and hospitalization, despite the

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Court's requirement that he do so if moving for a continuance of the hearing. Therefore, Plaintiff

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is ordered to show cause, by May 11, 2018, why Plaintiff should not be required to pay

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Defendants' attorney's fees incurred for preparing for and attending the April 19, 2018 hearing.

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IT IS SO ORDERED.
Dated: April 27, 2018
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KANDIS A. WESTMORE
United States Magistrate Judge

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