Crawford v. Japan Airlines, et al
Filing
561
ORDER DENYING MARTIN STERENBUCH'S MOTION FOR RELIEF UNDER FEDERAL RULE 60 FROM THE COURT'S ORDER OF MARCH 30, 2015 re 556 . Signed by JUDGE LESLIE E. KOBAYASHI on 05/29/2015. Martin Sterenbuch's Moti on for Relief under Federal Rule 60 from the Court's Order of March 30, 2015, filed April 24, 2015, is HEREBY DENIED.This Court ORDERS Mr. Sterenbuch to pay $9,515.31 to JAL, through JAL's counsel, by June 29, 2015. This Court CAUT IONS Mr. Sterenbuch that this Court will impose civil contempt sanctions against him if he fails to make timely payment of the award. See 3/30/15 Enforcement Order at 11-12. (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JACK CRAWFORD,
)
)
Plaintiff,
)
)
vs.
)
)
JAPAN AIRLINES, ET AL.,
)
)
Defendants.
)
_____________________________ )
CIVIL 03-00451 LEK-KSC
ORDER DENYING MARTIN STERENBUCH’S MOTION FOR RELIEF UNDER
FEDERAL RULE 60 FROM THE COURT’S ORDER OF MARCH 30, 2015
On April 24, 2015, Martin Sterenbuch, Esq., former
counsel for Plaintiff Jack Crawford (“Crawford”), filed his
Motion for Relief under Federal Rule 60 from the Court’s Order of
March 30, 2015 (“Motion”).
[Dkt. no. 556.]
Defendant Japan
Airlines (“JAL”) filed its memorandum in opposition on April 28,
2015, and Mr. Sterenbuch filed his reply on May 4, 2015.
nos. 557, 559.]
[Dkt.
The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.2(d) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).
After careful
consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, the Motion is HEREBY DENIED for
the reasons set forth below.
BACKGROUND
The relevant factual and procedural background of this
case are set forth in this Court’s:
-March 28, 2014 Order: 1) Granting Plaintiff’s Objections to the
Magistrate Judge’s Findings and Recommendation to Grant in
Part and Deny in Part Defendant Hawaii Aviation Contract
Services, Inc.’s Motion for Award of Attorney’s Fees and
Rejecting the Findings and Recommendation; and 2) Denying
Plaintiff’s Objections to the Magistrate Judge’s Findings
and Recommendation to Grant in Part and Deny in Part
Defendant Japan Airlines’ Motion for Attorney’s Fees and
Adopting the Findings and Recommendation (“3/28/14 Fee
Order”); [dkt. no. 538;1] and
-March 30, 2015 Order Granting in Part and Denying in Part
Defendant Japan Airlines’s Motion to Show Cause Regarding
Plaintiff Jack Crawford’s and His Counsel’s Failure to Pay
the Court’s Award of Attorney’s Fees and Costs (“3/30/15
Enforcement Order”); [dkt. no. 555].
In the 3/28/14 Fee Order, this Court adopted the
magistrate judge’s recommendation that JAL be awarded $52,511.02
in attorneys’ fees and $4,580.87 in costs.2
This Court ordered
Crawford to pay fifty percent of the $57,091.89 total award
($28,545.94) and his counsel to pay fifty percent.
1326580, at *2, *7.
2014 WL
Further, this Court stated: “Michael Green,
James Frechter, and Martin Sterenbuch shall be jointly and
severally liable for the portion of the total award attributable
to Crawford’s counsel.”
Id. at *7.
In the 3/30/15 Enforcement
Order,3 this Court modified the 3/28/14 Fee Order by ordering
1
The 3/28/14 Fee Order is also available at 2014 WL
1326580.
2
The 3/28/14 Fee Order addressed, inter alia, the
magistrate judge’s findings and recommendation regarding JAL’s
motion for attorneys’ fees (“Fee Motion”), filed on June 24,
2013. [Dkt. no. 469.]
3
The 3/30/15 Enforcement Order addressed JAL’s Motion for
(continued...)
2
“Mr. Green, Mr. Frechter, and Mr. Sterenbuch shall each be
responsible for one-third of the $28,545.95 award attributable to
counsel.”
[3/30/15 Enforcement Order at 10.]
Relevant to the
instant Motion, this Court ordered Mr. Sterenbuch to pay
$9,515.31 to JAL, through JAL’s counsel, by May 14, 2015.
[Id.
at 11.]
In the instant Motion, Mr. Sterenbuch seeks relief from
the 3/30/15 Enforcement Order, pursuant to Fed. R. Civ. P. 60.
He asks this Court to vacate the fee award against him or to
reduce it to a minimal amount.
STANDARD
Although Mr. Sterenbuch does not specify which
subsection of Rule 60 that he bases his Motion upon, this Court
concludes that the applicable provision is Rule 60(b), which
states:
Grounds for Relief from a Final Judgment, Order,
or Proceeding. On motion and just terms, the
court may relieve a party or its legal
representative from a final judgment, order, or
proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or
excusable neglect;
(2) newly discovered evidence that, with
reasonable diligence, could not have been
3
(...continued)
Order to Show Cause Regarding Plaintiff Jack Crawford’s and His
Counsel’s Failure to Pay the Court’s Award of Attorney’s Fees and
Costs (“Enforcement Motion”), filed on December 31, 2014. [Dkt.
no. 545.]
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discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released
or discharged; it is based on an earlier
judgment that has been reversed or vacated;
or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
The standards applicable to motions for reconsideration also
apply to motions for relief pursuant to Rule 60(b).
See, e.g.,
Grindling v. Bert Sam Fong, No. CIV. 14–00098 SOM/BMK, 2014 WL
2004360, at *1-2 (D. Hawai`i May 15, 2014) (applying case law
regarding motions for reconsideration to the analysis of motion
under Rule 60(b)).
Based on the specific grounds for relief that
Mr. Sterenbuch presents, see Discussion section infra, this Court
concludes that he is seeking relief pursuant to either Rule
60(b)(1) or (6).
Rule 60(b)(1) “allows a court to correct its own errors
of law or other mistakes.”
Grindling, 2014 WL 2004360, at *2
(citing Fid. Fed. Bank FSB v. Durga Ma Corp., 387 F.3d 1021, 1024
(9th Cir. 2004); Kingvision Pay–Per–View Ltd. v. Lake Alice Bar,
168 F.3d 347, 350 (9th Cir. 1999)).
The Ninth Circuit has held that Rule 60(b)(6) requires
a showing of “‘extraordinary circumstances’” justifying relief.
4
See, e.g., Wood v. Ryan, 759 F.3d 1117, 1120 (9th Cir. 2014) (per
curiam) (some citations and internal quotation marks omitted)
(quoting Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S. Ct. 2641,
162 L. Ed. 2d 480 (2005)).
For example, “gross negligence by
counsel amounting to virtual abandonment can be an ‘extraordinary
circumstance’ that justifies vacating a default judgment pursuant
to Rule 60(b)(6).”
Mackey v. Hoffman, 682 F.3d 1247, 1251 (9th
Cir. 2012) (brackets, citation, and some internal quotation marks
omitted).
DISCUSSION
In the instant Motion, Mr. Sterenbuch argues that this
Court should grant him relief from the 3/30/15 Enforcement Order
because: 1) he did not have a sufficient opportunity to be heard
on the attorneys’ fee issue; and 2) the award that this Court
ordered against him would not have a deterrent effect.
The Court
addresses each argument in turn.
I.
Opportunity to Be Heard
Mr. Sterenbuch states that Crawford terminated his
services on February 23, 2013, although he remained as counsel of
record until July 2013.
After the termination of his services,
he “was unable to file any pleadings or have any further say or
‘input’ in the prosecution of Plaintiff’s case.”
[Motion at 2.]
He emphasizes that the Fee Motion and the 3/28/14 Fee Order were
filed after Crawford terminated his services.
5
He also states
that he relied on Mr. Frechter’s representation that he was going
to file an appeal on Crawford’s behalf regarding both the
dismissal of Crawford’s claims and the 3/28/14 Fee Order.
Mr. Sterenbuch “believed that there was nothing that [he] could
personally do, since [he] was no longer representing
Mr. Crawford.
Nor did [he] think that the Court of Appeals would
entertain a separate appeal by [him].”
[Id. at 3.]
Although
Mr. Frechter filed a Notice of Appeal, the appeal was eventually
dismissed with prejudice for failure to prosecute after he
failed, in spite of multiple extensions of the deadline, to file
Crawford’s opening brief.
[Id.]
Mr. Sterenbuch points out that the 3/30/15 Enforcement
Order recognized that he was not served with either the
Enforcement Motion or this Court’s January 7, 2015 entering order
directing Crawford to addressing both his and his counsel’s
liability in his opposition to the motion (“1/7/15 EO”).
3 (quoting 3/30/15 Enforcement Order at 5).]
[Id. at
He also states that
he was not served with the 3/30/15 Enforcement Order.
He
therefore argues that he “never had the opportunity to be heard
on the attorney fee issue before this Honorable Court,” and he
did not have an opportunity to be heard before the Ninth Circuit
because of Mr. Frechter’s “egregious conduct and repeated failure
to discharge his professional responsibilities.”
6
[Id.]
First, although Mr. Sterenbuch was not served with
either the Enforcement Motion or the 1/7/15 EO, on January 17,
2015, he filed a declaration in opposition to the motion
(“Sterenbuch Declaration”), which this Court considered in its
ruling.
See 3/30/15 Enforcement Order at 1 (noting the filing of
the Sterenbuch Declaration [dkt. no. 550]).
The Sterenbuch
Declaration raised the same argument about the termination of his
services that he raises in the instant Motion.
This Court
rejected that argument in the 3/30/15 Enforcement Order
because: 1) Mr. Sterenbuch could have raised the argument in
connection with the proceedings which culminated in the 3/28/14
Fee Order; and 2) he was responsible, along with Mr. Frechter and
Mr. Green, for the filing of the frivolous motion that triggered
the award of attorneys’ fees in the 3/28/14 Fee Order.
[3/30/15
Enforcement Order at 7-9.]
This Court therefore finds that Mr. Sterenbuch’s
argument regarding his purported lack of opportunity to address
the fee issue does not present the type of extraordinary
circumstances necessary to justify Rule 60(b)(6) relief.
Further, the argument is not a basis for relief under Rule
60(b)(1) because he is merely disagreeing with this Court’s
rulings in the 3/30/15 Enforcement Order.
See Grindling, 2014 WL
2004360, at *2 (stating that “[d]isagreement with a previous
order is an insufficient basis for reconsideration”).
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Thus, this
Court DENIES the Motion as to Mr. Sterenbuch’s argument that he
did not have a sufficient opportunity to address his individual
liability for the fees award.
II.
Lack of Deterrent Effect
Mr. Sterenbuch also argues that this Court should
either vacate or drastically reduce the award against him because
he is “currently retired from law practice and [has] no
professional income,” and therefore the award would not have a
deterrent effect.
[Motion at 3-4.]
This is an argument that he
could have raised in connection with either the Fee Motion or the
Enforcement Motion, and therefore it is not a sufficient ground
for reconsideration pursuant to Rule 60(b)(1).
See Grindling,
2014 WL 2004360, at *2 (stating that “reconsideration may not be
based on evidence and legal arguments that could have been
presented at the time of the challenged decision”).
Further, his
argument is similar to the deterrence argument that Crawford,
through Mr. Frechter and Mr. Green, raised in his objections to
the magistrate judge’s recommended award of attorneys’ fees.
[Objections to the Findings and Recommendation of Magistrate
Judge Kevin C. [sic] Chang to Grant in Part and Deny in Part
Defendant Japan Airlines’ Motion for Attorney’s Fees, filed
2/5/14 (dkt. no. 534), filed at 6-7.]
This Court rejected that
argument, finding that the recommended award was “an appropriate
amount to deter Crawford, Crawford’s counsel, and other similarly
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situated parties and their counsel,” from filing motions similar
to the frivolous motion that Crawford filed which triggered the
award of attorneys’ fees.
This Court also finds that Mr. Sterenbuch’s retirement
is not the type of extraordinary circumstance necessary to
justify Rule 60(b)(6) relief.
This Court therefore DENIES the
Motion as to Mr. Sterenbuch’s deterrence argument.
CONCLUSION
On the basis of the foregoing, Martin Sterenbuch’s
Motion for Relief under Federal Rule 60 from the Court’s Order of
March 30, 2015, filed April 24, 2015, is HEREBY DENIED.
This Court ORDERS Mr. Sterenbuch to pay $9,515.31 to
JAL, through JAL’s counsel, by June 29, 2015.
This Court
CAUTIONS Mr. Sterenbuch that this Court will impose civil
contempt sanctions against him if he fails to make timely payment
of the award.
See 3/30/15 Enforcement Order at 11-12.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 29, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
JACK CRAWFORD VS. JAPAN AIRLINES, ET AL; CIVIL 03-00451 LEK-KSC;
ORDER DENYING MARTIN STERENBUCH’S MOTION FOR RELIEF UNDER FEDERAL
RULE 60 FROM THE COURT’S ORDER OF MARCH 30, 2015
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