Weakley v. Redline Recovery Services, LLC et al

Filing 87

ORDER Granting in Part and Denying in Part Plaintiff's 68 Motion for Sanctions. Defendant's counsel shall pay Plaintiff $900.00 on or before May 20, 2011. Signed by Judge Roger T. Benitez on 4/20/2011. (knh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AARON WEAKLEY,

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CASE NO. 09cv1423 BEN (WMC)
Plaintiff,

ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION FOR
SANCTIONS

vs.
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REDLINE RECOVERY SERVICES, LLC;
JAY RILEY; KEN HARDY,

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Defendants.

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Plaintiff Aaron Weakley moves for sanctions against Defendant’s counsel for publically filing

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documents containing Plaintiff’s social security number, without redaction, in violation of Federal

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Rule of Civil Procedure 5.2. Defendant’s counsel opposes the imposition of sanctions. Because the

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Court finds that Defendant’s counsel acted in bad faith, Plaintiff’s request for sanctions is GRANTED

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in part and DENIED in part.

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DISCUSSION

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The Court has the inherent power to issue sanctions. Primus Auto. Fin. Servs., Inc. v. Batarse,

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115 F.3d 644, 648 (9th Cir. 1997). “The most common utilization of inherent powers is a contempt

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sanction levied to protect the due and orderly administration of justice and maintain the authority and

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dignity of the court.” Id. (internal quotations and citations omitted). To award sanctions under the

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Court’s inherent power, “the court must make an explicit finding that counsel’s conduct ‘constituted

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or was tantamount to bad faith.’” Id. (quoting Roadway Express, Inc. v. Piper, 447 U.S. 725, 767

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09cv1423

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(1980)). A party can “demonstrate bad faith by ‘delaying or disrupting the litigation or hampering

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enforcement of a court order.’” Id. at 649 (citing Hutto v. Finney, 437 U.S. 678, 689 n.14 (1978)).

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The Court has “broad fact-finding powers with respect to sanctions, and its findings warrant great

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deference,” but the Court must be explicit. Id. at 649; see also Mendez v. Cnty. of San Bernardino,

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540 F.3d 1109, 1132 (9th Cir. 2008) (reversing award of sanctions, in part, because district court failed

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to make explicit finding of bad faith).

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Defendant’s counsel unquestionably violated Federal Rule of Civil Procedure 5.2. Rule 5.2

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specifically requires that in a “filing with the court that contains an individual’s social security number

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. . . a party or nonparty making the filing may include only: (1) the last four digits of the social-security

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number.” Defendant’s counsel filed two documents containing Plaintiff’s complete social security

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number. Defendant’s counsel was unquestionably on notice of his obligation, under Rule 5.2, to redact

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Plaintiff’s social security number. To access the Court’s CM/ECF system, Defendant’s counsel is

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required to check a box that indicates “I understand that, if I file, I must comply with the redaction

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rules. I have read this notice.” The notice directly above this language and the check-box states,

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“IMPORTANT NOTICE OF REDACTION RESPONSIBILITY: All filers must redact: Social

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Security . . . numbers . . . in compliance with Fed. R. Civ. P. 5.2 . . . . This requirement applies to all

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documents, including attachments.” Additionally, Defendant’s counsel had previously redacted his

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own client’s protected information, evidencing his knowledge of the requirement. This is not a

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situation where Defendant’s counsel was unaware of the requirement or was not given reasonable

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notice of what was expected. Mendez, 540 F.3d at 1132.

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In failing to comply with Rule 5.2, Defendant’s counsel made Plaintiff’s full social security

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number available to the public.

While counsel eventually corrected the mistake, Plaintiff’s

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information was publically available over the internet for more than three weeks. Defendant’s

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counsel’s attempt to construe Plaintiff’s failure to bring the violation to his attention sooner as a

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waiver is not well taken. It is not Plaintiff’s or the Court’s responsibility to comb through Defendant’s

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filings in search of counsel’s violations. And any delay by Plaintiff in bringing the violation to

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Defendant’s attention certainly is not the equivalent of a waiver because Plaintiff did not file his social

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security number without redaction. FED . R. CIV . P. 5.2(h) (“A person waives the protection of Rule
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09cv1423

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5.2(a) as to the person’s own information by filing it without redaction and not under seal.”)

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The Court need not detail the serious consequences individuals suffer when their social security

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numbers are publically broadcast over the internet for any would-be identity thieves. This is evident,

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not only from the information filed by Plaintiff in support of his motion, but also from Rule 5.2 itself

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and this district’s requirement that any filer affirmatively indicate knowledge of and compliance with

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the Rule to access the filing system. The violation is particularly troubling in this instance because

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Plaintiff is serving in the military in Afghanistan, limiting his ability to personally protect his now

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compromised social security number from identity thieves.

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Defendant’s counsel’s conduct was clearly reckless, but, contrary to Plaintiff’s position,

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recklessness is not enough. “[R]ecklessness . . . is an insufficient basis for sanctions under a court’s

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inherent power. Instead, counsel’s conduct must constitute or be tantamount to bad faith.” In re

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Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 436 (9th Cir. 1996) (internal citations and quotations

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omitted). In support of a showing of bad faith, Plaintiff points to this blatant violation, as well as a

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previous “erroneous” filing with the Court. Defendant’s counsel filed a 14-page document with the

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Court with Plaintiff counsel’s electronic signature when Plaintiff’s counsel had only reviewed a 7-page

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document.

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The Court finds that Defendant’s counsel’s conduct, particularly his blatant violation of a Rule

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he affirmed shortly before filing, has sufficiently disrupted this litigation to warrant the imposition of

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some sanction. Primus, 115 F.3d at 649 (A party can “demonstrate bad faith by delaying or disrupting

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the litigation”). Plaintiff requests (1) ten years of credit monitoring for Plaintiff; (2) a $5,000 payment

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to the National Association of Consumer Advocates; and (3) payment of Plaintiff’s attorney’s fees,

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totally $1,817. The Court finds that $900.00, for five years of credit monitoring, is a reasonable

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sanction for Defendant’s counsel’s conduct.1 Defendant’s counsel shall pay $900.00 to Plaintiff on

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or before May 20, 2011.

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This Court’s imposition of a sanction does not in anyway shield Defendant’s counsel from any
liability that might otherwise result from the disclosure of Plaintiff’s social security number.
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CONCLUSION
Plaintiff’s motion for sanctions is GRANTED in part and DENIED in part. Defendant’s
counsel shall pay Plaintiff $900.00 on or before May 20, 2011.

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IT IS SO ORDERED.

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DATED: April 20, 2011

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Hon. Roger T. Benitez
United States District Judge

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