Shalaby v. Bernzomatic et al

Filing 131

ORDER granting Defendant's Motion for Contempt and Sanctions (Doc. No. 119 ). Signed by Judge Anthony J. Battaglia on 8/15/2019. (jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Andrew W. Shalaby,

Case No.: 3:11-cv-0068-AJB
Plaintiff,

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ORDER GRANTING DEFENDANT’S
MOTION FOR CONTEMPT AND
SANCTIONS (Doc. No. 119)

v.
Bernzomatic, et al.,

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Defendants.

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Defendants Bernzomatic, et al. move the Court to find Plaintiff Andrew Shalaby in

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contempt of the Court’s pre-filing order and to award Defendants sanctions.

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(Doc. No. 119.) In the Court’s pre-filing order, the Court stated, “Andrew Shalaby must

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seek and obtain leave of this Court, prior to filing any new actions, against any defendant,

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in any forum, based upon, or related in any way, to injuries he sustained as a result of the

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accident on April 21, 2006.” (Doc. No. 66 at 8.)

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Defendants note, however, that Shalaby attempted to have his case added as a related

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case in an MDL in the Central District of California. (Doc. No. 119-1 at 3.) Shalaby was

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also seeking to have other cases he represents consolidated into the MDL. (Id.) Defendants

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argue his “attempted disclosure of Shalaby v. Bernzomatic as a potential tag-along action

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to the MDL is a new action that is based upon, or at least, related to the injuries Shalaby

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sustained as a result of the accident he suffered on April 21, 2006. (Id. at 5.)
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3:11-cv-0068-AJB

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Shalaby responds in an unsurprising fashion by alleging Defendants’ motion

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“constitutes the crime of witness-tampering. . . .” (Doc. No. 127 at 2.) Shalaby insists

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Defendants’ filing of the motion warrants sanctions for him and, of course, “termination of

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the prefiling order for Defendants’ abuse of the order and witness-tampering.” (Id.)

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In reviewing Shalaby’s response, the only substantive response he makes argues he

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was unable to seek leave of Court to file new actions as the Court directed the Court Clerk

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to reject any additional filings. However, the Court still receives any document Shalaby

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seeks to file with it—but rather than automatically filing any document Shalaby seeks to

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file, the Court Clerk rather discrepancies it (which prevents its publication on the docket)

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and allows the District Judge to decide whether it stays off the docket or gets filed. Thus,

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Shalaby’s argument he was prevented from seeking permission regarding new actions is

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incorrect, although the Court acknowledges Shalaby might not have known that. However,

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the Court notes Shalaby made no attempt to seek permission to file any new cases, an odd

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concession when Shalaby sought more than several reconsideration motions of his pre-

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filing order and sought leave to oppose the instant motion.

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Which, predictably, Shalaby once against requests the Court terminate the pre-filing

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order. He also asks the Court, once again, to issue a protective order preventing Defendants

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from referring to the order in other actions. (Doc. No. 127 at 7.) However, the Court has

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already addressed these arguments and declines to re-visit them now.

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As to Shalaby’s assertion Defendants’ motion constitutes witness tampering,

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(Doc. No. 127 at 7–8), the Court notes 18 U.S.C. § 1532(b) does not exist, but that 18

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U.S.C. § 1512 is a criminal statute and as such, the Court has no civil authority to enforce

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it. The same applies for Cal. Penal Code § 136.1. Accordingly, the Court declines Shalaby’s

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request to find Defendants have witness-tampered.

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Most notably however is Shalaby’s failure to respond to the core charge in

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Defendants’ motion. Shalaby failed to show that he sought this Court’s leave to file his

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case as a related case in another court’s MDL. Accordingly, the Court agrees with

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Defendants that he is in contempt of the pre-filing order. See Sephary-Fard v. Select
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3:11-cv-0068-AJB

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Portfolio Servicing, Inc., NO. 14-cv-05142-LHK, 2016 WL 4436312, at *1 (N.D. Cal.

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Aug. 23, 2016) (granting motion for contempt against plaintiff who violated court’s prior

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vexatious litigant order).

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The Court finds that sanctions at this time is appropriate. Shalaby acted “in bad faith,

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vexatiously, wantonly, or for oppressive reasons.” Matsumaru v. Sato, 521 F. Supp. 1013,

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1016 (D. Az. 2007) (finding a court may impose sanctions for these reasons). Courts have

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the inherent power to sanction parties that willfully disobey a court order. See Broemer v.

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U.S., No. CV 01-04340 MMM (RZx), 2002 WL 3644940, at *1 (C.D. Cal. Jan. 9, 2002)

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(citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Accordingly, the Court

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GRANTS Defendants’ request for monetary sanctions against Shalaby for reasonable

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attorney’s fees and costs expended for bring this motion and defending against Shalaby’s

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attempt to enter his case into the proposed MDL in the Central District. Defendants must

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file its motion for attorney’s fees and costs by August 30, 2019. Shalaby may oppose the

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motion by September 13, 2019. Defendants’ reply is due by September 20, 2019. A

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hearing date will be set by the Court as it sees fit.

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IT IS SO ORDERED.
Dated: August 15, 2019

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