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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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 9 United States District Court For the Northern District of California 10 11 No. C 11-172 CW JUDY SALAMON, ORDER ON PLAINTIFF’S MOTION REGARDING SANCTIONS Plaintiff, v. CREDITORS SPECIALTY SERVICE, INC., Defendants. 12 13 ________________________________/ 14 15 Plaintiff Judy Salamon has filed a motion for an order to 16 show cause why Defendant Creditors Specialty Service, Inc. should 17 not be sanctioned for failing to comply with this Court’s orders 18 to appear for a judgment debtor examination. 19 file an opposition to the motion. 20 record in this case, the Court deems Plaintiff’s motion to be a 21 motion for sanctions and denies the motion for the reasons below. 22 23 Defendant did not Having considered the entire BACKGROUND Plaintiff sued Creditors Specialty Service, a debt collector, 24 for violations of the Fair Debt Collection Practices Act (FDCPA), 25 15 U.S.C. §§ 1692 et seq., and the Rosenthal Fair Debt Collection 26 Practices Act, Cal. Civ. Code §§ 1788 et seq. 27 answer the Complaint and its default was entered April 6, 2011. 28 Plaintiff filed a motion for default judgment, which was referred Defendant failed to 1 to Magistrate Judge Spero for report and recommendation. 2 Court adopted the recommendation to award Plaintiff $500 for 3 violations of the FDCPA and $500 for violations of the Rosenthal 4 Act, and to award Plaintiff $3,101.50 in fees and costs. 5 7, 2012, judgment was entered in favor of Plaintiff against 6 Creditors Specialty Service in the amount of $1,000.00 in 7 statutory damages, with interest thereon as provided by 28 U.S.C. 8 § 1961, and $3,101.50 in fees and costs. 9 The On March On March 28, 2012, Plaintiff filed an ex parte application United States District Court For the Northern District of California 10 for a debtor examination pursuant to Federal Rule of Civil 11 Procedure 69(a)(2), which was referred to Magistrate Judge Vadas. 12 The court set the judgment debtor examination for June 21, 2012. 13 On June 20, 2012, Plaintiff filed a request to vacate the judgment 14 debtor examination on the ground that Charles Stanley, whom 15 Plaintiff believes to be the president of Creditors Specialty 16 Service, informed Plaintiff’s counsel by telephone that neither he 17 nor anyone else from Creditors Specialty Service would attend the 18 judgment debtor examination. 19 the debtor examination, and Plaintiff filed a motion for contempt 20 and sanctions against Creditors Specialty Service and Mr. Stanley 21 for refusing to appear for a debtor examination. 22 This Court denied the motion for contempt and sanctions and 23 ordered Defendant to appear before Judge Vadas for a judgment 24 debtor examination at a time to be determined by him. 25 51. 26 and sanctions, the Court stated that Defendant’s “failure to 27 appear at the debtor examination may result in an order 28 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 2 1 including payment of Plaintiff’s reasonable attorney fees.” 2 Docket No. 51 at 7. 3 Plaintiff also filed a motion to compel Defendant to respond 4 to her discovery requests, which motion the Court referred to 5 Judge Vadas. 6 granted Plaintiff’s discovery motion in part, and ordered 7 Defendant to respond to certain interrogatories and production 8 requests and to pay Plaintiff $450 in expenses related to the 9 motion to compel. United States District Court For the Northern District of California 10 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 11 examination for October 26, 2012. Docket No. 52. Plaintiff has 12 filed a proof of service showing that on October 16, 2012, 13 Defendant was served with a copy of the Clerk’s Notice, Judge 14 Vadas’s order on her discovery motion, and this Court’s order on 15 her motion for contempt and sanctions. 16 24, 2012, Plaintiff filed a motion to vacate the judgment debtor 17 examination, stating that she was again informed by Charles 18 Stanley that neither he nor anyone else from Creditors Specialty 19 Service would attend the examination. 20 vacated the judgment debtor examination and set the matter for a 21 telephonic status conference on October 26, 2012. 22 Defendant did not appear for the status conference. Docket No. 54. Docket No. 55. On October The Court Docket No. 56. Id. 23 On November 19, Plaintiff filed the instant motion for an 24 order to show cause why Defendant should not be sanctioned for 25 failing to comply with the Court’s orders. 26 § 363(e)(6)(B)(iii), Magistrate Judge Vadas certified facts 27 related to Plaintiff’s pending motion. 28 3 Pursuant to 28 U.S.C. See Docket No. 60. 1 Plaintiff Judy Salamon has filed proof that she has served Judge 2 Vadas’s certification of facts on Defendant. 3 4 Docket No. 61. DISCUSSION As stated in the Court’s order on Plaintiff’s initial motion 5 for sanctions and contempt, the Court may award sanctions pursuant 6 to its inherent authority to sanction a party for failure to 7 comply with a court order. 8 End’d & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (“Courts are 9 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 10 statute but by the control necessarily vested in courts to manage 11 their own affairs so as to achieve the orderly and expeditious 12 disposition of cases.’”) (quoting Chambers v. NASCO, Inc., 501 13 U.S. 32, 43 (1991)). 14 The Court denied Plaintiff’s initial motion for sanctions on 15 two grounds: (1) Plaintiff’s failure to file a proof of service 16 showing that Defendant was served with notice of the judgment 17 debtor examination, and (2) Plaintiff’s failure to file a 18 declaration demonstrating the amount of attorneys' fees and costs 19 that were reasonably expended in preparing for the debtor 20 examination. 21 serving Defendant with notice of the second scheduled judgment 22 debtor exam ten days prior to the date of the examination date as 23 required by California Code of Civil Procedure section 708.110(d). 24 However, Plaintiff’s counsel still has not filed a declaration in 25 support of Plaintiff’s motion for sanctions setting forth his 26 hourly rate or time spent on this matter to support a lodestar 27 calculation. 28 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). 4 1 hours of attorney’s fees in pursuing the collection of judgment, 2 at a rate of $290.00 per hour” and that she “seeks an additional 3 award of $1,740.00 in attorney’s fees.” 4 Order to Show Cause at 2. 5 Plaintiff’s Motion for an Accordingly, the Court DENIES Plaintiff’s motion for 6 sanctions without prejudice to renewal if she submits a 7 declaration from counsel sufficient to support an award of fees 8 and costs. 9 Docket No. 59. IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 12 Dated: 1/29/2013 CLAUDIA WILKEN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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