Martel et al v Cain

Filing 16

ORDER Admonishing C. Conrad Claus. ORDER Sanctioning Carl Joerger in a Court fine of $250. Signed by Magistrate Judge Nancy J. Koppe on 7/28/14. (Copies have been distributed pursuant to the NEF: cc Finance - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VALERIE MARTEL, et al.,

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Plaintiff(s),

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vs.

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DALE L. CAIN, SR.,

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Defendant(s).

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Case No. 2:14-cv-00636-RCJ-NJK
ORDER ADMONISHING C. CONRAD
CLAUS
ORDER SANCTIONING CARL
JOERGER

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On July 18, 2014, the Court ordered Plaintiffs, Defendant and their counsel to show cause in
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writing, no later than July 25, 2014, why they should not be sanctioned pursuant to Federal Rule of Civil
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Procedure 16(f). See Docket No. 12.1 Plaintiffs and their attorney (C. Conrad Claus) filed a response.

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Docket No. 13. Defendant and his attorney (Carl Joerger) failed to respond to the order to show cause.
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For the reasons discussed more fully below, the Court hereby ADMONISHES C. Conrad Claus and
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hereby SANCTIONS Carl Joerger in a Court fine of $250.
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I.

STANDARDS

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Parties and attorneys are required to follow Court orders. Rule 16(f) requires parties and
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attorneys to comply with pretrial orders and provides that a judge may order appropriate sanctions,
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including those outlined in Rule 37(b)(2)(A)(ii)-(vii), for non-compliance. Whether the party and/or its
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counsel disobeyed the court order intentionally is impertinent; sanctions may be imposed when the
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References to “Rules” hereafter refer to the Federal Rules of Civil Procedure.

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parties and their counsel disobey a court order. See Lucas Auto. Eng’g, Inc. v. Bridgestone/ Firestone,

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Inc., 275 F.3d 762, 769 (9th Cir. 2001) (sanctions may be imposed when disobedience of order is

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unintentional). Rule 16(f) “was designed not only to insure the expeditious and sound management of

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

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could have been more productively utilized by litigants willing to follow the Court’s procedures.’”

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Martin Family Trust v. Heco/Nostalgia Enterps. Co., 186 F.R.D. 601, 603 (E.D. Cal. 1999) (quoting

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Mulkey v. Meridan Oil, Inc., 143 F.R.D. 257, 262 (W.D. Okla. 1992)).

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The Court has broad discretion in fashioning the appropriate sanctions. See, e.g., Official Airline

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Guides, Inc. v. Goss, 6 F.3d 1385, 1397 (9th Cir. 1993). The Court may impose any “just” sanctions

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under Rule 16(f). In determining the appropriate sanction, the Court notes that a primary objective of

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Rule 16(f) is the deterrence of similar misconduct. Martin Family Trust, 186 F.R.D. at 604.2

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II.

BACKGROUND

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On July 14, 2014, the parties submitted a proposed discovery plan. Docket No. 10. On July 15,

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2014, the Court denied the proposed discovery plan and ordered that a new discovery plan be submitted

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no later than July 17, 2014. See Docket No. 11. The parties failed to comply with that order. On July

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18, 2014, the Court issued the pending order to show cause why the parties and their counsel should not

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be sanctioned for failing to comply with the July 15, 2014 order. Docket No. 12. Responses to the order

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to show cause were due no later than July 25, 2014. See id. Although Plaintiffs and their counsel timely

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responded to the order to show cause, Defendant and his counsel did not.

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III.

ANALYSIS

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A.

Defendant and Carl Joerger

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Defendant and his attorney (Carl Joerger) have violated two clear Court orders. They violated

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the Court’s July 15, 2014 order to timely file an amended discovery plan and they further violated the

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order to show cause by failing to timely respond to it. In light of the failure to respond to the order to

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show cause, it appears that there is no justification for these shortcomings and that sanctions are

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Similarly, the Local Rules make clear that the Court may “impose any and all appropriate
sanctions” on attorneys who, without just cause, either fail to appear when required for argument on a
motion or otherwise fail to comply with any order of the Court. Local Rule IA 4-1.
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warranted. In the Court’s view, it appears that Mr. Joerger as Defendant’s attorney bears the brunt of

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the blame for not responding to the Court’s orders given that he receives the notice of the Court orders

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rather than his client. In light of the circumstances, the Court SANCTIONS Mr. Joerger in a Court fine

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of $250. The sanction is personal to Mr. Joerger. Payment of the $250 shall be made within ten days

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to the “Clerk, U.S. District Court.” Mr. Joerger shall submit proof of payment to the undersigned

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Judge’s chambers within five days of payment.

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B.

Plaintiffs and C. Conrad Claus

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Plaintiffs and their attorney (C. Conrad Claus) did respond to the order to show cause. Although

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not entirely clear, Mr. Claus argues primarily that he failed to comply with the July 15, 2014 order

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because he and his staff did not receive notice of its issuance. See Docket No. 13.3 The Court takes very

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seriously representations from attorneys that they did not receive notice of a Court order. The Court

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tracks the sending of the notices through its Notice of Electronic Filing (“NEF”). In this case, the NEF

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shows that the notice of the July 15, 2014 order was sent from the Court to Mr. Claus to two email

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address: [e-mail], [e-mail]. In addition, however, the Court also tracks

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delivery of the NEFs to counsel through the Administrative Office’s Case E-Mail Notification Tracking

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System (“CENTS”). In this case, the CENTS records show that the Court’s notice was successfully

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delivered to the server for the above two email addresses.4

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Together, the NEF and the CENTS records create significant evidence of proper delivery of the

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Court’s notice. In particular, the NEF alone establishes that notice was properly sent and creates a

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presumption of delivery and receipt. See American Boat Co. v. Unknown Sunken Barge, 567 F.3d 348,

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352-53 (8th Cir. 2009). This presumption is not overcome based on a simple statement in a declaration

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that notice was not received. See, e.g., Trustees of the Operating Eng’rs Pension Trust v. Maui One

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Excavating, Inc., 2013 WL 1908328, *2 (D. Nev. May 7, 2013) (finding such an assertion “plainly

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While that appears to be Mr. Claus’s argument, the Court finds it notable that his declaration
actually asserts “[t]hat I did receive the July 15, 2014, Order Denying the Discovery Plan and directive to
submit an Amended Plan by July 17, 2014.” Docket No. 13 at 2 (emphasis added). The Court assumes
this was a typographical error in light of the other assertions made.
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The NEF and CENTS records for Mr. Claus and his paralegal are attached to this order.
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insufficient” to overcome presumption, and citing Singh v. Arrow Truck Sales, Inc., 2006 WL 1867540,

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*1 (E.D. Cal. July 5, 2006)). That is especially true when the CENTS records further confirm delivery.

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Id.

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In this case, the Court finds that Mr. Claus has failed to rebut the presumption of delivery created

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by the NEF and further confirmed by the CENTS record. Mr. Claus has also failed to put forth any other

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justification for his violation of the July 15, 2014 order. Nonetheless, in the circumstances of this case,

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the Court finds that a strong ADMONISHMENT of Mr. Claus is sufficient sanction to deter future

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misconduct. The Court reminds Mr. Claus that he bears the responsibility of maintaining his CM/ECF

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account and reviewing and responding to Court orders. See, e.g., Cabrera v. New Albertson’s, Inc., 2013

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U.S. Dist. Lexis 101497, *4 (D. Nev. July 19, 2013). Mr. Claus should expect future violations of Court

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orders to result in monetary sanctions.

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IV.

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CONCLUSION
For the reasons discussed more fully above, the Court hereby ADMONISHES C. Conrad

Claus and hereby SANCTIONS Carl Joerger in a Court fine of $250.

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IT IS SO ORDERED.

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DATED: July 28, 2014

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______________________________________
NANCY J. KOPPE
United States Magistrate Judge

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7/25/14

CM/ECF - nvd - District Version 5.0.3-Display Receipt

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United States District Court
District of Nevada
Notice of Electronic Filing
The following transaction was entered on 7/15/2014 at 3:15 PM PDT and filed on 7/15/2014
Case Name:
Martel et al v Cain
Case Number:
2:14-cv-00636-RCJ-NJK
Filer:
Document Number: 11
Docket Text:
ORDER that [10] Proposed Discovery Plan/Scheduling Order is DENIED. Signed by
Magistrate Judge Nancy J. Koppe on 7/15/14. (Copies have been distributed pursuant to the
NEF - MMM)
2:14-cv-00636-RCJ-NJK Notice has been electronically mailed to:
Carl M Joerger [e-mail]
Christian Conrad Claus [e-mail], [e-mail]
2:14-cv-00636-RCJ-NJK Notice has been delivered by other means to:
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