Cross v. Jaeger et al

Filing 403

ORDER overruling as moot Plaintiff's ECF No. 384 Objection; denying Plaintiff's ECF No. 389 Motion to File a Reply in Support of Objection, directing Clerk to strike proposed reply brief; overruling Plaintiff's ECF No. 400 Objection; directing Plaintiff to show cause within 20 days as to why sanctions should not be imposed for Plaintiff's violation of Judge Cooke's order to show cause. Defendant to respond within 10 days thereafter. No reply will be permitted. Signed by Judge Miranda M. Du on 5/22/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ANTHONY CROSS, 10 Case No. 3:13-cv-00433-MMD-WGC Plaintiff, ORDER v. 11 RON JAEGER, et al., 12 Defendant. 13 14 I. SUMMARY 15 Following summary judgment proceedings, the Court entered an Order referring 16 this case to United States Magistrate Judge Valerie P. Cooke to conduct a settlement 17 conference pursuant to LR 16-5 (“Referral Order”). (ECF No. 335.) Judge Cooke held a 18 settlement conference on January 23, 2017. (ECF No. 382.) Judge Cooke found that 19 Plaintiff’s conduct during the settlement conference compelled her to certify to this Court 20 a finding of civil contempt against Plaintiff pursuant to 28 U.S.C. § 636(e)(6). (Id.) Before 21 Judge Cooke issued any certification, Plaintiff filed an objection to Judge Cooke’s 22 determination to certify. (ECF No. 384.) Judge Cooke subsequently deemed certification 23 to be moot because of the impracticality of civil contempt (given Plaintiff’s indigent status). 24 (ECF No. 392.) As an alternative, Judge Cooke determined it would be proper to proceed 25 pursuant to the Court’s authority under Fed. R. Civ. P. 41(b) and Local Rule IA 11-8. (Id.) 26 Judge Cooke thus issued an order to show cause and set a show cause hearing. (Id.; ECF 27 No. 395.) Plaintiff filed an objection to the show cause order and hearing (ECF No. 400) 28 and refused to appear for the show cause hearing. (ECF No. 401.) 1 This Order addresses Plaintiff’s objections to Judge Cooke’s decision to certify 2 facts to the district court judge for an entry of civil contempt (ECF No. 384) and her decision 3 to order Plaintiff to show cause (ECF No. 400). 4 1. ECF No. 384 5 As noted, Plaintiff filed an objection to Judge Cooke’s determination to certify to this 6 Court a finding of civil contempt against Plaintiff. (ECF No 384.) However, Judge Cooke 7 did not proceed with certification and instead issued an order to show cause pursuant to 8 the Court’s authority under Fed. R. Civ. P. 41(b) and LR IA 11-8. (ECF No. 392.) Plaintiff 9 thus prematurely objected to an anticipated certification order that was not issued. 10 Because Judge Cooke ultimately decided against certification, Plaintiff’s objection (ECF 11 No 384) is overruled as moot. Plaintiff’s motion to file a reply in support of his objection 12 (ECF No. 389) is denied.1 The Clerk is directed to strike Plaintiff’s proposed reply brief 13 (ECF No. 394-1). 14 2. ECF No. 400 15 In Plaintiff’s objection to Judge Cooke’s orders setting a show cause hearing, 16 Plaintiff challenges both Judge Cooke’s authority to order a hearing as well as her stated 17 reason for setting the hearing. First, Plaintiff argues that Judge Cooke lacks authority to 18 hold a hearing to address civil contempt. Plaintiff is correct that pursuant to 28 U.S.C. § 19 636(e)(6), a magistrate judge must certify facts to the district court judge to hold a hearing 20 to determine civil contempt. However, Judge Cooke has not issued any such certification 21 to initiate section 636(e)’s civil contempt process. As Judge Cooke explained, she decided 22 that civil contempt would be impractical here. (ECF No. 392.) 23 Second, Plaintiff contends that his objection to Judge Cooke’s initial decision to 24 recommend certification renders her order ineffective pending the Court’s disposition of 25 his objection. (ECF No. 400 at 2.) Plaintiff is wrong. An objection to a magistrate judge’s 26 /// 27 28 1LR IB 3-2(a) provides for a reply in support of an objection to the Magistrate Judge’s order to be filed only with leave of the court. The Court finds that a reply is not necessary here even if Plaintiff’s objection was not premature. 2 1 order does not stay the effect of the order; rather, a party would have to move to stay the 2 order. Moreover, Judge Cooke indicated that she intended to certify facts to the district 3 court judge pursuant to 28 U.S.C. § 636(e)(6)). Ultimately, however, Judge Cooke decided 4 to hold a show cause hearing pursuant to this Court’s authority under Fed. R. Civ. P. 41(b) 5 and Local Rule IA 11-8. (ECF No. 392.) Plaintiff’s premature objection to an anticipated 6 certification order would not preclude Judge Cooke from proceeding with a show cause 7 hearing. 8 Third, to the extent Plaintiff contends that he has a right to refuse to speak to Judge 9 Cooke during the settlement conference under the First Amendment, Plaintiff is again 10 wrong.2 The First Amendment does not apply in this context. Because Plaintiff was 11 ordered to participate in a settlement conference and to appear for a show cause hearing, 12 his failure to participate is not protected by the First Amendment. See In re Grand Jury 13 Proceedings, 13 F.3d 1293, 1295 (9th Cir. 1994) (finding that 28 U.S.C. § 1826 allows a 14 court to hold a witness in civil contempt where he refuses without just cause to comply 15 with an order of the court to testify). Moreover, this Court ordered Plaintiff to participate in 16 settlement conference when it referred the case to Judge Cooke. While Plaintiff may agree 17 not to settle, he still must exhibit respect for the proceedings and the authority of the 18 magistrate judge. It is the magistrate judge who determines when a settlement conference 19 “is over” and when to discharge the parties; Plaintiff does not have that authority. 20 Finally, to the extent that Plaintiff challenges Judge Cooke’s authority to proceed 21 with a show cause hearing, his objection is without merit. As the presiding judge, this Court 22 has inherent authority under Fed. R. Civ. P. 41(b) and Local Rule IA 11-8 to impose 23 dismissal as a sanction for violating the Court’s order. The Court also has inherent 24 authority to enforce its orders. See U.S. v. W.R. Grace, 526 F.3d 499, 509 (9th Cir. 2008) 25 (“[a]ll federal courts are vested with inherent powers enabling them to manage their cases 26 and courtrooms effectively and to ensure obedience to their orders”) (internal quotation 27 2Plaintiff 28 launches other personal attacks on Judge Cooke, as he did with Judge Cobb, which the Court will not dignify with a response. 3 1 marks and citation omitted). The Court’s Referral Order extends this inherent authority to 2 ensure that the parties meaningfully participate in the settlement conference. Thus, Judge 3 Cooke acted within the scope of the authority conferred under the Referral Order to issue 4 an order to show cause to Plaintiff for failing to participate in the settlement conference in 5 good faith. 6 7 Plaintiff’s objection to Judge Cooke’s orders to show cause (ECF No. 400) is overruled. 8 3. Show Cause Order 9 Plaintiff failed to appear at the May 8, 2017, show cause hearing. (ECF No. 401.) 10 Plaintiff is ordered to show cause as to why this Court should not impose sanctions, 11 including and up to dismissal of this case under Fed. R. Civ. P. 41(b), for Plaintiff’s violation 12 of Judge Cooke’s order to show cause. The Court will issue a separate order setting the 13 show cause hearing. Plaintiff may respond to this order within twenty (20) days. Defendant 14 has ten (10) days to respond. No reply will be permitted. 15 DATED THIS 22nd day of May 2017. 16 17 18 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 4

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