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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 8 SAN JOSE DIVISION 11 12 JEFFREY SCHULKEN AND JENIFER SCHULKEN, individually and on behalf of a class of similarly situated individuals, 13 Plaintiffs-Appellees, 14 15 16 v. WASHINGTON MUITUAL BANK and JP MORGAN CHASE BANK, N.A, Defendants. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 20 the reasons stated below, the Court hereby CONTINUES the hearing on this motion, currently set 21 for October 16, 2014, to October 30, 2014, at 1:30 p.m. 22 I. BACKGROUND 23 This dispute stems from a class action Plaintiffs-Appellees filed on June 18, 2009, alleging 24 that Defendants Washington Mutual Bank and JPMorgan Chase Bank, N.A. had violated state and 25 federal laws relating to home equity lines of credit following the collapse of the housing market in 26 late 2008. ECF No. 1. On April 27, 2012, the parties reached an agreement and moved for 27 preliminary approval of class action settlement, which the Court granted on July 25, 2012. ECF 28 1 Case No.: 09-CV-02708-LHK ORDER CONTINUING HEARING 1 No. 203; ECF No. 210. On October 15, 2012, Mr. Earl filed an objection to the settlement. ECF 2 No. 213. The Court held a final approval of class action settlement hearing on November 8, 2012, 3 which Mr. Earl did not attend. On November 13, 2013, the Court overruled Mr. Earl’s objections, 4 granted final approval of the settlement, and extended the settlement opt-out deadline to permit Mr. 5 Earl to exclude himself from the class and bring his individual claims separately, ECF No. 223. 6 Instead of opting out, Mr. Earl filed a motion to vacate the judgment pursuant to Rule 60(b), ECF 7 No. 225, which the Court denied on January 1, 2013, ECF No. 237. On January 28, 2012, Mr. Earl 8 appealed the following orders of this Court: (1) order granting in part and denying in part class 9 certification, ECF No. 184; (2) order granting preliminary approval of the settlement, ECF No. United States District Court For the Northern District of California 10 210; (3) order granting final approval of the settlement over Mr. Earl’s objections, ECF No. 223; 11 and (4) order denying Mr. Earl’s post-judgment Motion to Vacate, ECF No. 237. In his appeal, Mr. 12 Earl alleged inadequate representation by lead plaintiffs, a “disproportionate” settlement 13 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 14 15 appeal brought by both Mr. Earl and Plaintiffs-Appellees. ECF No. 259. Among the motions was 16 Plaintiffs-Appellees’ motion that Mr. Earl post an appeal bond pursuant to Federal Rule of 17 Appellate Procedure 7 to secure payment of Plaintiffs-Appellees’ costs on appeal (“Bond 18 Motion”). See ECF No. 240. The Court found that posting a bond would not be an undue burden to 19 Mr. Earl, that Plaintiffs-Appellees reasonably anticipated difficulty in collecting costs related to the 20 appeal, and that it was likely Mr. Earl would not prevail on appeal. ECF No. 259, at 6-8. The Court 21 therefore granted the Bond Motion, and ordered Mr. Earl to post a $5,000 bond. Id. at 9-10. 22 On June 27, 2014, Plaintiffs-Appellees filed the instant motion, arguing that the Court 23 should find Mr. Earl in contempt for disobeying this Court’s April 2, 2013 order by not posting an 24 appeal bond. ECF No. 272. Mr. Earl filed his opposition on July 14, 2014, ECF No. 274, and 25 Plaintiffs-Appellees filed their reply on July 16, 2014, ECF No. 273. On September 26, 2014, this 26 Court issued an order instructing Mr. Earl to post the appeal bond within seven days.1 ECF No. 27 28 1 The Court did not serve Mr. Earl with this order by mail. See ECF No. 278. 2 Case No.: 09-CV-02708-LHK ORDER CONTINUING HEARING 1 275. On October 6, 2014, this Court issued a second order instructing Mr. Earl to post the appeal 2 bond within seven days. ECF No. 278; see also ECF No. 278-1 (clerk’s proof of service by mail). 3 On October 15, 2014, this Court received a $5,000 personal check from Mr. Earl. Mr. Earl 4 5 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 6 7 promptly.” Maness v. Meyers, 419 U.S. 449, 458-59 (1975). A party fails to act as ordered by the 8 court “when he fails to take ‘all the reasonable steps within [his] power to insure compliance with 9 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 10 1987) (quoting Sekaquaptewa v. MacDonald, 544 F.2d 396, 406 (9th Cir. 1976)). If a party 11 “disobeys a specific and definite court order, he may properly be adjudged in contempt.” In re 12 Crystal Palace, 817 F.2d at 1365; see also United States v. Powers, 629 F.2d 619, 624 (9th Cir. 13 1980) (“The inherent power of the courts to punish contempt of their authority and to coerce 14 compliance with orders is not disputed.”). Failure to obey a court order to post an appellate bond is 15 justifiable grounds for civil contempt, as well as the imposition of “any appropriate sanction.” In re 16 Magsafe Apple Power Adapter Litig., 571 F. App’x 560, 563 (9th Cir. 2014). 17 However, a district court has wide latitude in determining whether a party in defiance of its 18 order should be judged in contempt. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir. 1984). 19 Moreover, Mr. Earl, who is representing himself pro se, is entitled to greater leniency than a party 20 represented by an attorney. See Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986) (pro se 21 plaintiff entitled to leniency when judging compliance with technical rules). 22 23 III. DISCUSSION Mr. Earl mailed his personal check in the amount of $5,000 to the Court by certified mail 24 on October 10, 2014, which was within the seven-day deadline set by this Court’s October 6, 2014 25 order. See ECF No. 278. To verify that the bond has in fact been posted, the Court hereby 26 CONTINUES the hearing on Plaintiffs-Appellees motion to October 30, 2014, at 1:30 p.m. 27 28 3 Case No.: 09-CV-02708-LHK ORDER CONTINUING HEARING 1 IT IS SO ORDERED. 2 Dated: October 15, 2014 _________________________________ LUCY H. KOH United States District Judge 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No.: 09-CV-02708-LHK ORDER CONTINUING HEARING

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