Lincoln National Life Insurance Company v. Onsager et al

Filing 30

ORDER of Contempt: The court finds Attorney Cory R Thein is in contempt of court for disregarding an order of the court. The court does not impose a monetary sanction, but issues a warning. Attorney Thein is put on notice that the next time he disobeys an order of this court, the court will impose a monetary penalty against him. Signed by Chief Judge Linda R Reade on 3/5/2015. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

LINCOLN NATIONAL LIFE
INSURANCE COMPANY,
Plaintiff,
vs.

No. 13-CV-1030-LRR
ORDER

JAMES E. ONSAGER and
ALFRED J. WITTINE,
Defendants.
--------------------------------------------------JAMES E. ONSAGER,
Cross claimant,
vs.
ALFRED J. WITTINE,
Cross defendant.
--------------------------------------------------JAMES E. ONSAGER,
Counter claimant,
vs.
LINCOLN NATIONAL LIFE
INSURANCE COMPANY,
Counter defendant.
---------------------------------------------------

ALFRED J. WITTINE,
Cross claimant,
vs.
JAMES E. ONSAGER,
Cross defendant.
--------------------------------------------------ALFRED J. WITTINE,
Counter claimant,
vs.
LINCOLN NATIONAL LIFE
INSURANCE COMPANY,
Counter defendant.
____________________
The matter before the court is Attorney Cory R. Thein’s noncompliance with the
court’s Trial Management Order (docket no. 17). On March 4, 2015, the court held a
Final Pretrial Conference and Show Cause Hearing (“Hearing”).
It is “firmly established” that federal courts have “an inherent power ‘necessary to
the exercise of all others.’” Harlan v. Lewis, 982 F.2d 1255, 1259 (8th Cir. 1995)
(quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812)); see also 18 U.S.C.
§ 401 (stating that a court has the “power to punish by fine or imprisonment, or both, at
its discretion, such contempt of its authority . . . as . . . [d]isobedience or resistance to its
lawful . . . order . . . .”).
While this inherent power “ought to be exercised with great
caution,” it includes the power to discipline attorneys
appearing before the court. Over the years, the Supreme
Court has found inherent power to include the ability to
dismiss actions, assess attorneys’ fees, and to impose monetary
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or other sanctions appropriate “for conduct which abuses the
judicial process.”
Harlan, 982 F.2d at 1259 (citations omitted). However, a lawyer may not be held in
contempt for violating a court order unless the order was “‘sufficiently specific to be
enforceable.’” In re Medlock, 406 F.3d 1066, 1071 (8th Cir. 2005) (quoting Finney v.
Ark. Bd. of Corr., 505 F.2d 194, 213 (8th Cir. 1974)).
The court finds Attorney Cory R. Thein in contempt of court for disregarding an
order of the court. At the Hearing, Attorney Thein did not offer sufficient justification for
his failure to comply with the requirements of the Trial Management Order. The Trial
Management order directs the parties to jointly prepare a proposed Final Pretrial Order and
submit it to the court by email at least five calendar days before the Final Pretrial
Conference (“FPTC”). Trial Management Order at 3-4. On February 25, 2015, counsel
for James E. Onsager emailed the proposed Final Pretrial Order to the court, but stated
that counsel for Wittine did not participate in the preparation of the proposed Final Pretrial
Order, despite multiple attempts by counsel for Onsager to contact counsel for Wittine with
regard to the Final Pretrial Order. At the Hearing, it was determined that Stephen Scott,
an attorney with the same law firm as Attorney Thein, participated in an initial conference
call with counsel for Onsager. However, Scott is not licensed to practice in the United
States District Court for the Northern District of Iowa and Attorney Thein is the only
attorney of record for Wittine. Furthermore, there was no communication from counsel
for Wittine regarding the Final Pretrial Order after the initial conference call. The Trial
Management Order states that “[e]xhibit lists must be attached to, and witness lists must
be included as part of, the proposed Final Pretrial Order.” Id. at 4. The proposed Final
Pretrial Order does not contain the witness list or exhibit list for Wittine, nor were any lists
provided to the court prior to the show cause hearing. The Trial Management Order was
specific and unequivocal. See Medlock, 406 F.3d at 1071.
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The court does not impose a monetary sanction, but issues a warning. Attorney
Thein assures the court that this conduct will not happen again and the court takes him at
his word. Attorney Thein is put on notice that the next time he disobeys an order of this
court, the court will impose a monetary penalty against him.
IT IS SO ORDERED.
DATED this 5th day of March, 2015.

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