Fish et al v. Liberty Mutual Fire Insurance Company et al

Filing 44

ORDER Sanctioning Brock Ohlson, Joseph Wirth, and Bradley Mainor. Signed by Magistrate Judge Nancy J. Koppe on 12/13/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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SEAN L. FISH, et al.,

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Plaintiff(s),
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vs.
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LIBERTY MUTUAL FIRE INSURANCE
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COMPANY, et al.,
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Defendant(s).
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__________________________________________)

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Case No. 2:13-cv-0326-APG-NJK
ORDER SANCTIONING BROCK
OHLSON, JOSEPH WIRTH, AND
BRADLEY MAINOR

Pending before the Court is an order for attorneys Brock Ohlson, Joseph Wirth, and Bradley

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Mainor, as well as Plaintiffs, to show cause why they should not be sanctioned for failing to appear at a

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Court-ordered hearing. See Docket No. 35. The Court has now received a response to the order to

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show cause. Docket No. 43. For the reasons discussed below, the Court hereby SANCTIONS

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attorneys Brock Ohlson, Joseph Wirth, and Bradley Mainor in the amount of Defendants’ attorneys’

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fees, and DISCHARGES the order to show cause as to Plaintiffs.

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I.

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BACKGROUND
On December 2, 2013, Defendant Western United Insurance Company filed an emergency

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motion to stay. Docket No. 31. On December 3, 2013, the Court ordered that any response be filed no

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later than December 4, 2013, and set a hearing on the motion for December 6, 2013, at 2:00 p.m. in

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Courtroom 3B. Plaintiffs failed to file a response in opposition to the motion and Plaintiffs’ counsel

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failed to appear at the hearing. Counsel for both Defendant Western United Insurance Company and

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Defendant Liberty Mutual Fire Insurance Company did attend the hearing. See Docket No. 34. After

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the Court contacted Plaintiffs’ counsel (Brock Ohlson) regarding his failure to appear, he indicated that

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he did not have a justifiable reason for failing to attend the hearing. In responding to the subsequent

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order to show cause, Plaintiffs’ counsel again assert that they do not have a justifiable reason for failing

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to appear. In essence, Plaintiffs’ counsel asserts that their staff failed to give proper attention to Court

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notices, and that Plaintiffs’ counsel failed to include all necessary people on their CM/ECF distribution

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list to ensure compliance with Court orders. See Docket No. 43 at 2.

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II.

ANALYSIS
Attorneys are required to follow Court orders. Rule 16(f)1 requires counsel to comply with

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pretrial orders and provides that the Court may order any “just” sanctions, including those outlined in

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Rule 37(b)(2)(A)(ii)-(vii), for non-compliance.2 Whether the party and/or its counsel disobeyed the

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court order intentionally is impertinent; sanctions may be imposed when the parties and their counsel

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disobey a court order. See Lucas Auto. Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769

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(9th Cir. 2001). Rule 16(f) “was designed not only to insure expeditious and sound management of the

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preparation of cases for trial but to deter conduct that unnecessarily consumes ‘the Court’s time and

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resources that could have been more productively utilized by litigants willing to follow the Court’s

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procedures.’” Martin Family Trust v. Heco/Nostalgia Enters. Co., 186 F.R.D. 601, 603 (E.D. Cal.

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1999) (quoting Mulkey v. Meridian Oil, Inc., 143 F.R.D. 257, 262 (W.D. Okla. 1992)). Indeed, the rule

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also makes clear that “concerns about burdens on the court are to receive no less attention than

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concerns about burdens on opposing parties.” Matter of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984)

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(en banc).

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It is well-settled that attorneys are required to attend the hearings set by the Court, and to keep

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their contact information in the CM/ECF system accurate to ensure that they receive and comply with

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Court orders. See, e.g., Cabrera v. New Albertson’s, Inc., 2013 U.S. Dist. Lexis 101497, *4-5 (D. Nev.

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July 19, 2013); Trustees of the Operating Eng’rs Pension Trust v. Maui One Excavating, Inc., 2013

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Unless otherwise specified, references to “Rules” refer to the Federal Rules of Civil Procedure.

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Moreover, this Court’s Local Rules also provide the Court with authority to impose “any and
all appropriate sanctions on an attorney . . . who, without just cause . . . [f]ails to comply with any order
of this Court.” Local Rule IA 4-1.
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U.S. Dist. Lexis 65748, *6-9 (D. Nev. May 7, 2013).3 In this case, Plaintiffs’ counsel failed to comply

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with a Court-ordered deadline to respond to a motion, attend the hearing set by the Court for December

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6, 2013, failed to include the lead counsel on the case as a counsel of record on the docket, and failed to

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include necessary personnel on the CM/ECF distribution to ensure compliance with Court orders.4

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The Court takes counsel at their word that any shortcomings were not intentional and that they

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have fixed the issues regarding their CM/ECF notifications. In light of the circumstances in this case,

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the Court will not impose a Court fine. Nonetheless, Plaintiffs’ counsel caused Defendants to incur

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unnecessary attorneys’ fees by having their counsel attend the hearing on December 6, 2013, which the

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Court finds should be paid by Plaintiffs’ counsel. Accordingly, no later than December 16, 2013,

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Defendants’ counsel shall submit a declaration outlining the fees incurred in attending the hearing on

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December 6, 2013. Any objection to the calculation of fees shall be filed no later than December 23,

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2013.5 This sanction is imposed jointly and severally on Mr. Ohlson, Mr. Mainor, and Mr. Wirth, and

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in no way shall the money be paid by Plaintiffs themselves, either directly or indirectly.

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Lastly, the Court reminds counsel that it expects strict compliance with Court orders and the

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rules of the Court. Future violations may result in significant sanctions, up to and including, case-

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dispositive sanctions.

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IT IS SO ORDERED.

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DATED: December 13, 2013

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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The Court notes the representations that Mr. Ohlson is charged with handling this case.
Nonetheless, Mr. Wirth and Mr. Mainor are the attorneys of record and are also responsible for
responding to Court orders. See, e.g., Cabrera, 2013 U.S. Dist. Lexis 101497, *4 (sanctioning attorney
of record who asserted that he simply relies on another attorney to handle the case).
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It is clear that any shortcomings here were caused by Plaintiffs’ counsel rather than Plaintiffs
themselves. Accordingly, the order to show cause is DISCHARGED to the extent it related to Plaintiffs.
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Counsel are encouraged to confer on an appropriate amount of fees. To the extent they agree
on the amount of fees, they shall promptly file a notice with the Court so indicating.
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