Salamon v. Creditors Specialty Service, Inc.

Filing 63

ORDER by Judge Claudia Wilken ON PLAINTIFFS 59 MOTION REGARDING SANCTIONS. (ndr, COURT STAFF) (Filed on 1/29/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 11-172 CW

JUDY SALAMON,

ORDER ON
PLAINTIFF’S MOTION
REGARDING
SANCTIONS

Plaintiff,
v.
CREDITORS SPECIALTY SERVICE,
INC.,
Defendants.

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________________________________/

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Plaintiff Judy Salamon has filed a motion for an order to

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show cause why Defendant Creditors Specialty Service, Inc. should

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not be sanctioned for failing to comply with this Court’s orders

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to appear for a judgment debtor examination.

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file an opposition to the motion.

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record in this case, the Court deems Plaintiff’s motion to be a

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motion for sanctions and denies the motion for the reasons below.

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Defendant did not

Having considered the entire

BACKGROUND
Plaintiff sued Creditors Specialty Service, a debt collector,

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for violations of the Fair Debt Collection Practices Act (FDCPA),

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15 U.S.C. §§ 1692 et seq., and the Rosenthal Fair Debt Collection

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Practices Act, Cal. Civ. Code §§ 1788 et seq.

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answer the Complaint and its default was entered April 6, 2011.

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Plaintiff filed a motion for default judgment, which was referred

Defendant failed to

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to Magistrate Judge Spero for report and recommendation.

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Court adopted the recommendation to award Plaintiff $500 for

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violations of the FDCPA and $500 for violations of the Rosenthal

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Act, and to award Plaintiff $3,101.50 in fees and costs.

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7, 2012, judgment was entered in favor of Plaintiff against

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Creditors Specialty Service in the amount of $1,000.00 in

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statutory damages, with interest thereon as provided by 28 U.S.C.

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§ 1961, and $3,101.50 in fees and costs.

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The

On March

On March 28, 2012, Plaintiff filed an ex parte application

United States District Court
For the Northern District of California

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for a debtor examination pursuant to Federal Rule of Civil

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Procedure 69(a)(2), which was referred to Magistrate Judge Vadas.

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The court set the judgment debtor examination for June 21, 2012.

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On June 20, 2012, Plaintiff filed a request to vacate the judgment

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debtor examination on the ground that Charles Stanley, whom

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Plaintiff believes to be the president of Creditors Specialty

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Service, informed Plaintiff’s counsel by telephone that neither he

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nor anyone else from Creditors Specialty Service would attend the

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judgment debtor examination.

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the debtor examination, and Plaintiff filed a motion for contempt

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and sanctions against Creditors Specialty Service and Mr. Stanley

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for refusing to appear for a debtor examination.

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This Court denied the motion for contempt and sanctions and

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ordered Defendant to appear before Judge Vadas for a judgment

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debtor examination at a time to be determined by him.

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51.

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and sanctions, the Court stated that Defendant’s “failure to

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appear at the debtor examination may result in an order

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instituting contempt proceedings and/or issuing sanctions

Docket No. 42.

The court vacated

Docket No. 44.

Docket No.

In its order denying Plaintiff’s initial motion for contempt

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including payment of Plaintiff’s reasonable attorney fees.”

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Docket No. 51 at 7.

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Plaintiff also filed a motion to compel Defendant to respond

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to her discovery requests, which motion the Court referred to

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Judge Vadas.

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granted Plaintiff’s discovery motion in part, and ordered

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Defendant to respond to certain interrogatories and production

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requests and to pay Plaintiff $450 in expenses related to the

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motion to compel.

United States District Court
For the Northern District of California

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Docket Nos. 47, 48.

On October 1, 2012, Judge Vadas

Docket No. 50.

On October 15, 2012, a Clerk’s Notice set the judgment debtor

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examination for October 26, 2012.

Docket No. 52.

Plaintiff has

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filed a proof of service showing that on October 16, 2012,

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Defendant was served with a copy of the Clerk’s Notice, Judge

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Vadas’s order on her discovery motion, and this Court’s order on

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her motion for contempt and sanctions.

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24, 2012, Plaintiff filed a motion to vacate the judgment debtor

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examination, stating that she was again informed by Charles

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Stanley that neither he nor anyone else from Creditors Specialty

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Service would attend the examination.

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vacated the judgment debtor examination and set the matter for a

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telephonic status conference on October 26, 2012.

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Defendant did not appear for the status conference.

Docket No. 54.

Docket No. 55.

On October

The Court

Docket No. 56.
Id.

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On November 19, Plaintiff filed the instant motion for an

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order to show cause why Defendant should not be sanctioned for

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failing to comply with the Court’s orders.

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§ 363(e)(6)(B)(iii), Magistrate Judge Vadas certified facts

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related to Plaintiff’s pending motion.

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Pursuant to 28 U.S.C.

See Docket No. 60.

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Plaintiff Judy Salamon has filed proof that she has served Judge

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Vadas’s certification of facts on Defendant.

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Docket No. 61.

DISCUSSION
As stated in the Court’s order on Plaintiff’s initial motion

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for sanctions and contempt, the Court may award sanctions pursuant

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to its inherent authority to sanction a party for failure to

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comply with a court order.

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End’d & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (“Courts are

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invested with inherent powers that are ‘governed not by rule or

See Unigard Sec. Ins. Co. v. Lakewood

United States District Court
For the Northern District of California

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statute but by the control necessarily vested in courts to manage

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their own affairs so as to achieve the orderly and expeditious

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disposition of cases.’”) (quoting Chambers v. NASCO, Inc., 501

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U.S. 32, 43 (1991)).

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The Court denied Plaintiff’s initial motion for sanctions on

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two grounds: (1) Plaintiff’s failure to file a proof of service

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showing that Defendant was served with notice of the judgment

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debtor examination, and (2) Plaintiff’s failure to file a

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declaration demonstrating the amount of attorneys' fees and costs

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that were reasonably expended in preparing for the debtor

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examination.

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serving Defendant with notice of the second scheduled judgment

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debtor exam ten days prior to the date of the examination date as

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required by California Code of Civil Procedure section 708.110(d).

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However, Plaintiff’s counsel still has not filed a declaration in

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support of Plaintiff’s motion for sanctions setting forth his

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hourly rate or time spent on this matter to support a lodestar

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calculation.

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Plaintiff’s motion simply asserts that she has “incurred six (6)

Plaintiff has remedied one of those grounds by

See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

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hours of attorney’s fees in pursuing the collection of judgment,

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at a rate of $290.00 per hour” and that she “seeks an additional

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award of $1,740.00 in attorney’s fees.”

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Order to Show Cause at 2.

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Plaintiff’s Motion for an

Accordingly, the Court DENIES Plaintiff’s motion for

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sanctions without prejudice to renewal if she submits a

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declaration from counsel sufficient to support an award of fees

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and costs.

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Docket No. 59.

IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: 1/29/2013
CLAUDIA WILKEN
United States District Judge

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