Jura v. County of Maui et al

Filing 211

ORDER REJECTING ADDITIONAL SANCTIONS ORDER re 189 , 197 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/13/2014. " Although the court excuses Jura's noncompliance with the sanction order at this time, the court recogn izes that Jura's inability to pay the sanction may change in the future. The court therefore requires Jura for three years from the date of this order or until the original sanction is paid, whichever occurs first, to inform the County of Mau i whenever she begins employment, including providing the County of Maui with the name and address of any employer and the title of her position. Additionally, if Jura becomes financially able to pay the sanction order, she should do so without hav ing to involve the court. In other words, if Jura becomes able to pay the sanction at some time in the future, she will lack the current excuse for her noncompliance and should comply with the terms of the order." (emt, )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

JACKI JURA,

)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF MAUI; BENJAMIN M.
)
ACOB, in his official and
)
individual capacity; and
)
MARIE J. KOSGARTEN, in her
)
official and individual
)
capacity,
)
Defendants.
)
)
_____________________________ )

CIV. NO. 11-00338 SOM/RLP
ORDER REJECTING ADDITIONAL
SANCTIONS ORDER

ORDER REJECTING ADDITIONAL SANCTIONS ORDER
I.

INTRODUCTION.
The court sanctioned Plaintiff Jacki Jura $3,994.20 for

failing to attend an independent psychological examination.

When

Jura failed to pay this sanction or even respond to requests to
do so, Defendants County of Maui and Benjamin Acob (collectively,
“County of Maui”) moved for further sanctions, which the
Magistrate Judge granted.

Additionally, the Magistrate Judge

ordered that Jura would be held in contempt if she failed to make
$250 monthly payments.

Jura now appeals.

Reviewing the matter

de novo, this court rejects that decision, determining that,
because Jura has clearly demonstrated that she is currently
unable to comply with the original sanction, the Magistrate Judge
erred in imposing further sanctions on Jura for her failure to

pay that sanction and erred in forcing Jura to comply with a
court-ordered payment schedule or be held in contempt of court.
II.

BACKGROUND.
On November 19, 2012, the court sanctioned Jura

$3,994.20 ($2,094.20 for a late cancellation fee and $1,900.00 in
attorneys’ fees) for having failed to attend an independent
psychological examination.

See ECF No. 164.

Jura did not appeal

this order and does not dispute that she is obligated to pay this
sanction.
On January 4, 2013, the County of Maui sent a letter to
Jura’s counsel, demanding payment of the sanction and threatening
to file a motion to have Jura held in contempt.
2.

See ECF No. 182-

On September 4, 2013, the County of Maui reiterated its

demand for payment and threat to file a motion.
3.

See ECF No. 182-

At a hearing on November 14, 2013, Jura’s counsel represented

to the Magistrate Judge that these letters had been forwarded to
Jura.
There is no dispute that the County did not receive a
response to either letter.
On October 1, 2013, the County of Maui moved for
further sanctions, arguing that Jura had failed to comply with
the original sanction order of November 19, 2012.
182.

See ECF No.

The further sanctions motion sought an additional $920

sanction for additional attorneys’ fees incurred in bringing the

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motion and an order that Jura, herself an attorney, be held in
contempt if she failed to pay the sanction by a deadline set by
the court.

Id.
On October 2, 2013, the Magistrate Judge issued a

Notice of Hearing and an Order to Show Cause that required Jura
to explain why she should not be held in contempt for having
failed to comply with the original sanction order.

See ECF No.

183.
On October 16, 2013, Jura filed her written opposition
to the motion for further sanctions, arguing that she “was not
able to pay the sanctions because she did not have the money to
pay.”

See ECF No. 184 at 2, PageID # 2170.

Jura supported this

statement by submitting her own declaration, ECF No. 184-1.
declaration stated:
3.
I have not paid the monetary sanctions
imposed on me by the Court’s Order Granting
in Part and Denying in Part County
Defendants’ Motion for Sanctions because I
have not been able financially to do so due
to lack of funds from which a payment could
be made.
4.
My inability to comply with the Order
was caused by extenuating financial
circumstances and not by my unwillingness to
comply.
5.
Simply stated, I was not able to pay the
sanctions because I did not have the money to
pay.
. . . .

3

Her

8.
I have diligently sought permanent
employment since my termination at the
Prosecuting Attorney’s Office of the County
of Maui, but my efforts have been
unsuccessful.
. . . .
11. My last employment was a temporary
position as a trust officer with the Alaska
USA Trust Company in Anchorage, Alaska, which
ended involuntarily on July 31, 2012, due to
my lack of the knowledge, skills, and
experience that the position required since I
am trained as an attorney and not a trust
officer.
12. After losing the job with the Alaska USA
Trust Company I was left with no money and no
ability to afford to even travel back to
Hawaii.
13. I started receiving unemployment
benefits in the amount of approximately $800
per month, which was not enough to cover my
living expenses, but my unemployment benefits
have recently expired.
14. I currently have no income and I am not
able to pay my living expenses, let alone
payment of my debts as they mature.
15. Because I was not able to afford to pay
the rent of approximately $1,150 plus the
utilities, I recently moved out of the
apartment I was renting for about a year and
I am currently staying with a friend as a
guest.
16. I have no health insurance and I cannot
even afford to pay for a replacement hearing
aid which I need due to my hearing
impairment.
17. I have substantial debts, which in
addition to the monetary sanctions imposed by
the Court’s Order, include prior student
loans I took to complete my education and my
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law degree, as well as credit card debts and
debts to individuals who assisted me
financially during the recent years of my
unemployment.
See E.C. No. 184-1.

The clear import of Jura’s declaration is

that she lacks the ability to pay her living expenses and other
debts.
Jura then detailed the substantial amounts she owes to
various companies and individuals, concluding that she is
“financially insolvent due to [her] continuing unemployment” and
noting that she “exhausted [her] ability to take on additional
debt a long time ago.”

See ECF. No. 184-1, ¶¶ 18-23.

She

further stated, “I do not have an income stream that could
generate the funds needed to pay the sanctions or to travel to
Hawaii to appear at the hearing of the present Motion and answer
the Court’s Order to Show Cause.”

Id. ¶ 24.

On November 14, 2013, the further sanctions motion came
on for hearing before the Magistrate Judge assigned to this case.
The recording of the hearing shows that the Magistrate Judge was
rightly troubled by Jura’s failure to respond to the letters
inquiring about whether she would be paying the sanction order.
Because Jura is a member of the Hawaii bar, the Magistrate Judge
noted that Jura’s failure to obey a court order seemed
problematic.

Although the Magistrate Judge “hated to impose”

additional sanctions on someone who might not have the assets to
satisfy the sanction, he stated that he felt obligated to grant
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the motion for further sanctions because Jura’s declaration had
not satisfied the Ninth Circuit’s requirements relating to an
“impossibility defense.”

The Magistrate Judge denied Jura’s

counsel’s request to call her on the phone and did not respond to
a suggestion that Jura be allowed to file a supplemental
declaration that would clarify her financial situation.
On November 14, 2013, the Magistrate Judge filed a
written order granting the motion for further sanctions,
sanctioning Jura an additional $920, ordering that she pay $250
per month until the entire sanction was paid, and warning Jura
that failure to timely submit the monthly payments would result
in her being held in contempt of court.

See ECF. No. 189.

In so

ruling, the Magistrate Judge recognized that, “in cases of civil
contempt for failure to comply with an order to pay court-imposed
monetary sanctions, a party may use the impossibility defense
where he or she is financially unable to comply due to poverty or
insolvency.”

See ECF. No. 189 at 5, PageID # 2202 (citing

Cutting v. Van Fleet, 252 F. 100, 102 (9th Cir. 1918)).
In Cutting, the Ninth Circuit examined a contempt order
for failure to pay a sanction.

Cutting noted that, “in cases of

civil contempt for failure to comply with an order to pay money,
the defendant may show in defense that he is financially unable
to comply.”

Id.

The Ninth Circuit placed the burden of

demonstrating an inability to pay on the defendant, saying that a

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showing of inability to pay the sanction must be “satisfactory”
and “must clearly appear.”

Id.

The Ninth Circuit held that the

defendant in Cutting had not met that burden by submitting an
affidavit stating only that he “ha[d] been and [was] now unable
to comply with the terms of said order” because during the
relevant time he had not had “sufficient means, and is and has
been during all of said time financially unable to pay said sum
of $500.”

Id.

The Ninth Circuit reasoned that the affidavit was

insufficient because it failed “to state that the appellant owns
no property, real or personal, out of which $500 could be
realized, or that he has no property concealed, or transferred to
others, or other resources out of which he might pay the required
sum.”

Id. at 102-03.
Like the Ninth Circuit in Cutting, the Magistrate Judge

reasoned that Jura’s affidavit was insufficient to meet her
burden of demonstrating an inability to pay the sanction order.
The Magistrate Judge faulted Jura for having failed to even
attempt to take any steps to relieve herself of the burden of the
sanction order or to respond to the County of Maui’s letters
about it.

The Magistrate Judge reasoned that Jura had not met

her burden because her affidavit did not specifically discuss
whether she owns property or assets that could be used to pay the
sanction.

See ECF. No. 189 at 8, PageID # 2205.

The Magistrate

Judge therefore granted the County of Maui’s request for further

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sanctions and ordered Jura to pay the County of Maui $250 per
month until the total sanction of $4,914.20 is paid.
PageID # 2206.

Id. at 9,

The Magistrate Judge ordered that, absent timely

payments, Jura “will be held in contempt of court.”

Id.

On November 27, 2013, Jura moved for reconsideration of
the further sanctions order.

See ECF. No. 190.

In support of

that motion, Jura attached another declaration in which she
further explained her bleak financial situation.
190-2.

See ECF. No.

In addition to detailing her finances, Jura’s declaration

states, “I have no assets except for those inherent in my being
and a ‘98 Honda.

I do not have any gold, jewelry, stocks, bonds,

real estate, land, expectancies, equipment, precious metals,
artworks, pleasure crafts, boats, machines, furniture, rugs,
musical instruments, treasures, or anything that would fetch even
a modest prices.

I have nothing.”

See ECF. No. 190-2, ¶ 8,

PageID #s 2227-28.
On January 13, 2014, the Magistrate Judge denied Jura’s
reconsideration motion, reasoning that Jura had not initially
demonstrated an inability to pay the original sanction and noting
that, on a reconsideration motion, the court cannot examine new
evidence such as Jura’s new declaration.

See ECF. No. 196 at 6-

7, PageID #s 2262-63.
On January 27, 2014, Jura timely appealed the further
sanctions order.

See ECF. No. 197.

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III.

STANDARD.
Because this matter involved a post-judgment request,

and because no party objected to having a Magistrate Judge handle
the matter, the court deems the Magistrate Judge to have
determined the matter under 28 U.S.C. § 636(b)(3), which states,
“A magistrate judge may be assigned such additional duties as are
not inconsistent with the Constitution and laws of the United
States.”

See King v. Ionization Intel, Inc., 825 F.2d 1180, 1185

(7th Cir. 1987) (“No provision expressly authorizes the judge to
assign a magistrate to post-judgment proceedings, although we can
think of no good reason not to allow such assignments and the
statute does have a catch-all section: ‘A magistrate may be
assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States.’ 28 U.S.C.
§ 636(b)(3).”).
It is not entirely clear what level of scrutiny this
court applies when reviewing a matter under § 636(b)(3).

In an

abundance of caution, the court therefore treats the further
sanction order as the Magistrate Judge’s “findings and
recommendation” and reviews this matter de novo.

See Estate of

Conners by Meredith v. O’Connor, 6 F.3d 656, 659 n.2 (9th Cir.
1993); Rum v. County of Kauai, 2008 WL 2598138, *3 (D. Haw. June
30, 2008).

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IV.

ANALYSIS.
Because Jura has satisfactorily demonstrated that she

is financially unable to comply with the original sanction order
of November 19, 2012, ECF. No. 164, the court rejects the further
sanction order of November 14, 2013, ECF. No. 189.

In so ruling,

the court disagrees with the Magistrate Judge’s determination
that Jura’s original declaration of October 16, 2013, ECF. No.
184-1, was insufficient to demonstrate her inability to pay.
In Cutting, the Ninth Circuit ruled that, if a person
makes a showing that he or she is financially unable to comply
with an order to pay money, and that showing is “satisfactory”
because “the inability to pay . . . clearly appear[s],” the
person has a defense to a civil contempt proceeding for failure
to comply with the order.

Id.

The Ninth Circuit determined that

a person had not met that burden by submitting an affidavit that
simply stated that the person had been and is now unable to
comply with the order because he was and is financially unable to
pay.

Because the person had not stated that he owned no property

out of which money to pay the sanction could be realized and that
he had not concealed or transferred any property to others, the
Ninth Circuit determined that he had not met his burden under the
circumstances of that case.

Id. at 102-03.

In the present case, Jura’s original declaration of
October 16, 2013, was much more detailed than the affidavit in

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Cutting.

See ECF. No. 184-1.

Jura’s declaration not only stated

that she was financially unable to pay the sanction, but also
noted that she had been unemployed since July 2012, that her
unemployment benefits had recently expired, that she had no
income to pay her living expenses, that she was staying with a
friend because she could no longer afford her rent, that she had
no health insurance and could not afford to purchase a hearing
aid, and that she had substantial debts that she could not pay.
See id.

The clear import of these statements was that Jura had

no money or other property from which she could pay her day-today living expenses or other debts.

This was simply not a

situation in which Jura needed to say in her declaration that she
owned no property and had not transferred or hidden any property
from which she could pay the original sanction in this case.
Cutting is distinguishable on its facts because Jura’s
declaration satisfactorily and clearly demonstrated her inability
to pay the original sanction.

Jura’s declaration did not simply

say that she had insufficient means to pay the sanction, as in
Cutting.

The court therefore need not require her to have stated

in her declaration that she owned no property from which she
could get money to pay the sanction or that she had not otherwise
hidden or transferred property to prevent collection on the debt.

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In any event, at the hearing of November 14, 2013,
counsel for Jura suggested that Jura be allowed to file a
supplemental declaration that would track the language of
Cutting.

If the Magistrate Judge was concerned that Jura’s

declaration was misleading in that she might have property,
hidden or otherwise, from which the sanction could be paid, he
could have allowed her to submit a supplemental declaration like
her declaration of November 27, 2013, ECF. No. 190-2.

That

declaration clearly demonstrates that Jura owns little property.
The Magistrate Judge concluded that, because this second
declaration included new facts available to Jura at the time of
her original declaration, the new facts should not be considered
on a motion for reconsideration.

While this court sees no error

in that conclusion, this court, reviewing the matter de novo,
determines that Jura’s further explanation of her financial
difficulties via her supplemental declaration established that
she could not afford the original sanction.

Had the Magistrate

Judge considered the supplemental declaration, it appears
unlikely that the further sanctions would have been imposed.
On April 14, 2014, in fairness to the County of Maui,
the court issued a minute order allowing the County of Maui, at
its own expense, to examine Jura under oath concerning her
claimed inability to pay the original sanction.
206.

See ECF. No.

The County of Maui deposed Jura and submitted a

12

supplemental brief concerning her inability to pay the sanction.
See ECF. No. 210.

The court has reviewed that brief and

concludes that, even when the court considers the matters it
raises, Jura has still satisfactorily demonstrated an inability
to pay the original sanction.
The County of Maui complains that Jura has borrowed or
received money from friends and family to purchase plane tickets,
pay her bar dues, buy groceries, and pay her mobile phone bill,
and has convinced a friend to let her live rent free at the
friend’s house.

The County of Maui says that Jura made a student

loan payment the month before she signed her declaration.

The

Magistrate Judge also noted that Jura managed to pay the $455
appeal fee for the underlying case.

The County of Maui argues

that Jura could have taken the money lent or given to her and
used it to pay the sanction.

Although there is no dispute that

Jura has been able to pay certain bills, Jura has clearly
established that she cannot pay all of her debts, and the facts
indicate that she has been forced to choose which debts to pay.
This court will not punish Jura for choosing how to spend money
that her friends and family gave or lent to her, when those
choices did not involve luxuries or display a profligate nature.
Nor will this court force Jura to ask her friends and family to
lend or give her money to pay the original sanction.

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This court

also refrains from ordering Jura to “show . . . serious effort to
obtain employment” so that she can pay the sanction.
The court is not unsympathetic to the County of Maui’s
frustration in receiving no response from Jura’s counsel to
inquiries about payment of the original sanction.

However, the

court disagrees with the County of Maui’s contention that the
court should disregard Jura’s declarations because she lacks
credibility.

Even assuming that her declaration was drafted to

maximize the appearance of her inability to pay the sanction or
to minimize her relationship with her mother, the County of Maui
simply fails to demonstrate why her declarations should be
completely disregarded.

In other words, although the County of

Maui takes issue with certain things Jura says in her
declarations, it does not demonstrate that Jura was being
untruthful in explaining her financial circumstances.
As the Ninth Circuit noted in United States v.
Drollinger, 80 F.3d 389, 393 (9th cir. 1996), this “court should
weigh all the evidence” when determining whether Jura has the
present ability to pay the sanctions, which is a complete defense
to civil contempt.

When the court weighs all the evidence before

it, including Jura’s two declarations and her deposition
testimony, the court concludes that Jura has met her burden of
satisfactorily and clearly demonstrating that she currently lacks
the present ability to pay the original sanction.

14

The court

therefore excuses her failure to comply with the sanction order,
rejects the Magistrate Judge’s further sanction order, and denies
the County of Maui’s motion for further sanctions and for a
contempt order.

Of course, if Jura’s financial situation

changes, Jura should begin making payments on the original
sanction.
V.

CONCLUSION.
Because the court determines that Jura has

satisfactorily and clearly demonstrated that she cannot pay the
original sanction, the court rules that she cannot be held in
contempt of court for having failed to pay the sanction.

The

court therefore rejects the Magistrate Judge order that imposes
further sanctions on Jura for her failure to pay the original
sanction and relieves Jura of the obligation to pay $250 per
month or be held in civil contempt.
The court leaves it to the County of Maui to collect on
the original sanctions, if and/or when Jura is financially able
to pay that sanction.
Although the court excuses Jura’s noncompliance with
the sanction order at this time, the court recognizes that Jura’s
inability to pay the sanction may change in the future.

The

court therefore requires Jura for three years from the date of
this order or until the original sanction is paid, whichever
occurs first, to inform the County of Maui whenever she begins

15

employment, including providing the County of Maui with the name
and address of any employer and the title of her position.
Additionally, if Jura becomes financially able to pay the
sanction order, she should do so without having to involve the
court.

In other words, if Jura becomes able to pay the sanction

at some time in the future, she will lack the current excuse for
her noncompliance and should comply with the terms of the order.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 13, 2014

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Jura v. County of Maui, et al., Civ. No. 11-00338 SOM/PLD; ORDER REJECTING

ADDITIONAL SANCTIONS ORDER

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