Schulken et al v. Washington Mutual Bank, Henderson, NV et al

Filing 281

ORDER CONTINUING HEARING. Signed by Judge Lucy Koh on 10/15/2014. (lhklc2, COURT STAFF) (Filed on 10/15/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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JEFFREY SCHULKEN AND JENIFER
SCHULKEN, individually and on behalf of a
class of similarly situated individuals,

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Plaintiffs-Appellees,
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v.
WASHINGTON MUITUAL BANK and JP
MORGAN CHASE BANK, N.A,
Defendants.

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Case No.: 09-CV-02708-LHK
ORDER CONTINUING HEARING

Before the Court is Plaintiffs-Appellees Jeffrey Schulken and Jenifer Schulken’s
(“Plaintiffs-Appellees”) Motion for Contempt Against Objector Donald R. Earl (“Mr. Earl”). For

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the reasons stated below, the Court hereby CONTINUES the hearing on this motion, currently set
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for October 16, 2014, to October 30, 2014, at 1:30 p.m.
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I.

BACKGROUND

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This dispute stems from a class action Plaintiffs-Appellees filed on June 18, 2009, alleging
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that Defendants Washington Mutual Bank and JPMorgan Chase Bank, N.A. had violated state and
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federal laws relating to home equity lines of credit following the collapse of the housing market in
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late 2008. ECF No. 1. On April 27, 2012, the parties reached an agreement and moved for
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preliminary approval of class action settlement, which the Court granted on July 25, 2012. ECF
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Case No.: 09-CV-02708-LHK
ORDER CONTINUING HEARING

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No. 203; ECF No. 210. On October 15, 2012, Mr. Earl filed an objection to the settlement. ECF

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No. 213. The Court held a final approval of class action settlement hearing on November 8, 2012,

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which Mr. Earl did not attend. On November 13, 2013, the Court overruled Mr. Earl’s objections,

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granted final approval of the settlement, and extended the settlement opt-out deadline to permit Mr.

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Earl to exclude himself from the class and bring his individual claims separately, ECF No. 223.

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Instead of opting out, Mr. Earl filed a motion to vacate the judgment pursuant to Rule 60(b), ECF

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No. 225, which the Court denied on January 1, 2013, ECF No. 237. On January 28, 2012, Mr. Earl

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appealed the following orders of this Court: (1) order granting in part and denying in part class

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certification, ECF No. 184; (2) order granting preliminary approval of the settlement, ECF No.

United States District Court
For the Northern District of California

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210; (3) order granting final approval of the settlement over Mr. Earl’s objections, ECF No. 223;

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and (4) order denying Mr. Earl’s post-judgment Motion to Vacate, ECF No. 237. In his appeal, Mr.

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Earl alleged inadequate representation by lead plaintiffs, a “disproportionate” settlement

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distribution, and an inadequate opt-out notice. ECF No. 238.
On April 2, 2013, this Court issued an order regarding several motions related to Mr. Earl’s

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appeal brought by both Mr. Earl and Plaintiffs-Appellees. ECF No. 259. Among the motions was

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Plaintiffs-Appellees’ motion that Mr. Earl post an appeal bond pursuant to Federal Rule of

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Appellate Procedure 7 to secure payment of Plaintiffs-Appellees’ costs on appeal (“Bond

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Motion”). See ECF No. 240. The Court found that posting a bond would not be an undue burden to

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Mr. Earl, that Plaintiffs-Appellees reasonably anticipated difficulty in collecting costs related to the

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appeal, and that it was likely Mr. Earl would not prevail on appeal. ECF No. 259, at 6-8. The Court

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therefore granted the Bond Motion, and ordered Mr. Earl to post a $5,000 bond. Id. at 9-10.

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On June 27, 2014, Plaintiffs-Appellees filed the instant motion, arguing that the Court

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should find Mr. Earl in contempt for disobeying this Court’s April 2, 2013 order by not posting an

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appeal bond. ECF No. 272. Mr. Earl filed his opposition on July 14, 2014, ECF No. 274, and

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Plaintiffs-Appellees filed their reply on July 16, 2014, ECF No. 273. On September 26, 2014, this

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Court issued an order instructing Mr. Earl to post the appeal bond within seven days.1 ECF No.

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The Court did not serve Mr. Earl with this order by mail. See ECF No. 278.
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Case No.: 09-CV-02708-LHK
ORDER CONTINUING HEARING

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275. On October 6, 2014, this Court issued a second order instructing Mr. Earl to post the appeal

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bond within seven days. ECF No. 278; see also ECF No. 278-1 (clerk’s proof of service by mail).

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On October 15, 2014, this Court received a $5,000 personal check from Mr. Earl. Mr. Earl

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mailed the check by certified mail on October 10, 2014.
II.

LEGAL STANDARD
It is a “basic proposition that all orders and judgments of courts must be complied with

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promptly.” Maness v. Meyers, 419 U.S. 449, 458-59 (1975). A party fails to act as ordered by the

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court “when he fails to take ‘all the reasonable steps within [his] power to insure compliance with

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the [court’s] order [].”In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361, 1365 (9th Cir.

United States District Court
For the Northern District of California

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1987) (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir. 1976)). If a party

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“disobeys a specific and definite court order, he may properly be adjudged in contempt.” In re

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Crystal Palace, 817 F.2d at 1365; see also United States v. Powers, 629 F.2d 619, 624 (9th Cir.

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1980) (“The inherent power of the courts to punish contempt of their authority and to coerce

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compliance with orders is not disputed.”). Failure to obey a court order to post an appellate bond is

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justifiable grounds for civil contempt, as well as the imposition of “any appropriate sanction.” In re

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Magsafe Apple Power Adapter Litig., 571 F. App’x 560, 563 (9th Cir. 2014).

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However, a district court has wide latitude in determining whether a party in defiance of its

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order should be judged in contempt. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir. 1984).

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Moreover, Mr. Earl, who is representing himself pro se, is entitled to greater leniency than a party

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represented by an attorney. See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) (pro se

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plaintiff entitled to leniency when judging compliance with technical rules).

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III.

DISCUSSION
Mr. Earl mailed his personal check in the amount of $5,000 to the Court by certified mail

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on October 10, 2014, which was within the seven-day deadline set by this Court’s October 6, 2014

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order. See ECF No. 278. To verify that the bond has in fact been posted, the Court hereby

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CONTINUES the hearing on Plaintiffs-Appellees motion to October 30, 2014, at 1:30 p.m.

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Case No.: 09-CV-02708-LHK
ORDER CONTINUING HEARING

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IT IS SO ORDERED.

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Dated: October 15, 2014

_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 09-CV-02708-LHK
ORDER CONTINUING HEARING