Okonkwo v. Glendale Union High School District et al, No. 2:2008cv00633 - Document 51 (D. Ariz. 2009)
Court Description: ORDER granting 41 Motion for Sanctions. Defendants Glendale Union High School District, et al. are hereby collectively awarded fees in the sum of $3,958.50 against Plaintiff Charles Okonkwo. Plaintiff Charles Okonkwo shall pay this award of fe es on/before 4/10/09. IT IS RECOMMENDED that if the fees are not paid in full on/before 4/10/09, a separate Judgment, pursuant to Rule 58(b)(2)(B), Fed.R.Civ.P., be entered in favor of Defendants Glendale Union High School District, et al. and agains t Plaintiff Charles Okonkwo in the sum $3,958.50, plus interest at the legal rate until the Judgment is paid in full.FURTHER ORDERED Overruling and denying without prejudice 38 Motion Objecting to Judge Andersons Order/Motion for Reconsideration for New Settlement Conference Date. FURTHER ORDERED that Defendants settlement conference memorandum shall be filed under seal. Signed by Magistrate Judge Lawrence O Anderson on 3/4/09.(MAP)
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Okonkwo v. Glendale Union High School District et al 1 Doc. 51 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) Plaintiff, ) ) vs. ) ) ) Glendale Union High School District, et) al., ) ) Defendants. ) ) ) Charles Okonkwo, No. CV-08-0633-PHX-MHM ORDER 16 This matter arises on Defendants’ Motion for Sanctions, docket # 41, and pro 17 se Plaintiff’s Motion Objecting to Judge Anderson’s Order/Motion for Reconsideration for 18 New Settlement Conference Date, docket # 38. The assigned District Judge, the Hon. Mary 19 H. Murguia, referred these two motions to the undersigned Magistrate Judge for ruling. 20 (docket # 42) To date, neither Plaintiff nor his new counsel have filed a response in 21 opposition to Defendants’ Motion.1 For the reasons set forth herein, the Court will grant 22 Defendants’ Motion for Sanctions, docket # 41, and will deny without prejudice Plaintiff’s 23 Motion for Reconsideration for New Settlement Conference Date. 24 25 26 27 28 1 The docket reflects Plaintiff retained counsel, Tajudeen O. Oladiran, OLADIRAN & ASSOCIATES, PLC, 2525 E. Arizona Biltmore Circle, Suite D-144, Phoenix, Az 85016-2147, on or about February 12, 2009. (docket # 46) Dockets.Justia.com 1 BACKGROUND On February 15, 2008, Plaintiff Charles Okonkwo2 (“Okonkwo”) filed 2 3 an Amended Complaint in the Superior Court of Arizona, Maricopa County, against his 4 employer, Glendale Union High School District, and others, claiming wrongful 5 discrimination in his employment due to his race and national origin (Nigerian descent). 6 (docket # 1, ¶ 1; Exhibit (“Exh”) 1-5 at 3-11) Defendants’ timely removed this case on April 7 2, 2008. At the Rule 16 scheduling conference on June 9, 2008, the Hon. Mary H. Murguia, 8 referred this case to the undersigned for a settlement conference “to occur in November, 9 2008.” (docket # 17) The undersigned’s chambers issued its Settlement Conference Order, 10 docket # 21, on July 17, 2008, setting the settlement conference four months later on 11 November 19, 2008 at 2:00 p.m. 12 The Settlement Conference Order mandates, inter alia, “[e]ach party shall 13 provide the Court with the original of that party’s Settlement Conference Memoranda, at 14 least, five (5) business days before the Settlement Conference.” (docket # 21 at 4-5) 15 (emphasis in original) “The Settlement Conference Memoranda shall NOT be filed with the 16 Clerk. The original Settlement Conference Memoranda shall be delivered directly to the 17 chambers of U. S. Magistrate Judge Lawrence O. Anderson or e-mailed to the undersigned’s 18 ECF mailbox (anderson_chambers@azd.uscourts.gov). . . .” (Id.) On November 12, 2008,3 19 the Court received Defendants’ settlement conference memorandum that fully complied with 20 the Settlement Conference Order. 21 On November 14, 2008, five days before the settlement conference, Plaintiff 22 23 24 25 26 2 Plaintiff, a highly-educated (doctorate in philosophy in chemical engineering) pro se litigant, has unsuccessfully claimed employment discrimination in the past. The Court’s record reflects Okonkwo filed suit in this U.S. District Court in CV-01-1231-PHX-SRB. In that case, judgment was entered in favor of Defendant Arizona State University in 2003 and affirmed by the Ninth Circuit in March, 2005. 3 27 28 The undersigned’s Judicial Assistant kept detailed contemporaneous notes of the various events and conversations she had with Plaintiff and others in this case, including the date Defendants’ lodged settlement conference memorandum was received. -2- 1 filed a Motion to Continue Settlement Conference, requesting the Court “postpone the 2 Settlement Conference to some other date in December 2008 or January 2009, preferably on 3 a Friday [because] Plaintiff is out of state exploring business opportunities and also for [an 4 unexplained] important personal reason.” (docket # 32) 5 represented defense counsel had “no problem” with a continuance, the Court continued the 6 settlement conference to December 5, 2008 at 2:00 p.m.4 (docket # 35) Because Plaintiff’s Motion 7 Before continuing the settlement conference, the Court’s Judicial Assistant 8 spoke with both Plaintiff and defense counsel by telephone to confirm that December 5th 9 was a mutually agreeable date.5 There is no doubt Plaintiff knew the settlement conference 10 was rescheduled to December 5, 2008 and of his obligation to timely prepare and provide 11 a settlement conference memorandum to the Court and adverse counsel in light of the 12 electronic service of the July 17 and November 19, 2008 orders to Plaintiff, the Court’s 13 Judicial Assistant personally confirming the new date with Plaintiff, and defense counsel’s 14 conversations and emails to Plaintiff that are attached as exhibits to Defendants’ Motion 15 regarding Plaintiff’s obligation to deliver a pre-settlement conference demand. (docket # 41, 16 Exh. 1-3) As of December 5, 2008, neither the Court nor defense counsel6 had 17 18 19 20 21 22 23 24 25 26 27 28 4 The docket reflects this order was emailed to Plaintiff’s two separate email addresses: alanbonje@gmail.com, charles_okonkwo_99@yahoo.com 5 It is unclear whether Plaintiff is now denying this telephone call to informally confirm the December 5th date, docket # 38, but the order entered on November 19, 2008 clearly confirmed that December 5th at 2:00 p.m. was the new date for the settlement conference. (docket # 35) Moreover, the November 19, 2008 order “affirm[ed] all other orders contained in the undersigned’s Settlement Conference Order, docket #21, except for the date and time of said settlement conference.” (Id. at 2) Any claim by Plaintiff that this order was not electronically received at either of his two email addresses is not credible. 6 Defendants’ Motion verifies that the Court’s Judicial Assistant telephoned defense counsel to determine whether Plaintiff provided them with his settlement conference memorandum to rule out Plaintiff’s inadvertent failure to provide the Court with a copy. (docket # 41 at 3) They had not received one either. -3- 1 received Plaintiff’s settlement conference memorandum. Clearly, Plaintiff failed to comply 2 with this Court’s Settlement Conference Order which directed him to provide the Court and 3 adverse counsel with a settlement conference memorandum, at least, five business days 4 before the settlement conference. In the late morning of December 5, 2008, the Court 5 vacated the settlement conference, advised defense counsel of the cancellation, and issued 6 an order, docket # 36, stating that: 7 8 9 [I]f Defendants desire to seek sanctions against Plaintiff for the fees and costs associated with the preparation for today’s settlement conference, they shall file a motion for sanctions within 10 days of today’s date with the assigned District Judge who may refer it to the undersigned for consideration. 10 (docket # 36 at 2) Defendants’ Motion for Sanctions, docket # 41, was untimely filed on 11 December 19, 2008, four days after its due date. Because there is no prejudice to Plaintiff 12 due to Defendants’ untimely Motion, the Court will overlook its untimeliness just as the 13 Court would have overlooked an untimely lodged settlement conference memorandum had 14 Plaintiff provided one as late as December 4, 2008. 15 MAGISTRATE JUDGE JURISDICTION 16 When referred by a district judge pursuant to 28 U.S.C. § 636(b)(1)(A), a 17 magistrate judge has legal authority to impose non-dispositive sanctions for violations of 18 a magistrate judge’s orders. Grimes v. City and County of San Francisco, 951 F.2d 236, 241 19 (9th Cir. 1991) ($85,000 discovery sanction imposed by magistrate judge for party’s 20 obstruction of the discovery process, causing unnecessary delay and expense and wilful 21 disobedience of magistrate judge’s order is within the authority of a magistrate judge); 22 Pitman v. Brinker Intern., Inc., 216 F.R.D. 481 (D. Ariz. 2003), amended on 23 reconsideration in part, 2003 WL 23353478, * 2 (D. Ariz. 2003). This Magistrate Judge 24 has statutory and inherent authority to impose sanctions upon Plaintiff for failing to comply 25 with this Magistrate Judge’s lawful orders. 26 SANCTIONS RELATED TO SETTLEMENT CONFERENCES 27 Generally, “[t]hree primary sources of authority enable courts to sanction 28 -4- 1 parties or their lawyers for improper conduct: (1) Federal Rule of Civil Procedure 11, which 2 applies to signed writings filed with the court, (2) 28 U.S.C. § 1927,7 which is aimed at 3 penalizing conduct that unreasonably and vexatiously multiplies the proceedings, and (3) 4 the court’s inherent power.” Fink v. Gomez, 239 F.3d 989, 991 (9th Cir. 2001). Federal Rule 5 of Civil Procedure 16, however, specifically addresses a district court’s authority to conduct 6 pretrial conferences - including settlement conferences - to manage its cases, including the 7 imposition of sanctions. Rule 16(a)(5) and (f),8 FED.R.CIV.P. Although parties cannot be 8 compelled to settle a case, a district court may compel parties and their counsel to attend a 9 settlement conferences and to participate in negotiations in good faith. Id. The Ninth Circuit 10 has specifically held that a “district court did not abuse its discretion in awarding sanctions,” 11 consisting of the opposing party’s attorney’s fees and costs, for a party’s failure to comply 12 with “the court’s order regarding settlement conference.” Official Airline Guides, Inc. v. 13 Goss, 6 F.3d 1385, 1396 (9th Cir. 1993) (party failed to have person with settlement 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Due to the statute’s language, it is likely that § 1927 sanctions are applicable only to an attorney and requires a finding of bad faith. Williams v. Giant Eagle Markets, Inc., 883 F.2d 1184, 1191 (3d Cir. 1989). 8 Rule 16 (f), FED.R.CIV.P., provides: f) Sanctions. (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate--or does not participate in good faith--in the conference; or (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. Rule 16(f), FED.R.CIV.P. (emphasis added). -5- 1 authority available for conference). Thus, if noncompliance with a settlement conference 2 order is demonstrated, an award of reasonable attorneys’ fees and costs is mandated unless 3 the noncompliance was “substantially justified” or such an award would be “unjust.” 4 Falcon Farms, Inc. v. R.D.P. Floral, Inc., 2008 WL 3874598, * 2 (S.D. Fla. 2008) 5 (“Fed.R.Civ.P. 16(f)(1)(C) permits a court to issue any just order, including those 6 authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party fails to obey a pretrial order, such as this 7 Court’s mediation order.”) Rule 37(b), FED.R.CIV.P., “places the burden on the disobedient 8 party to avoid expenses [including an award of attorneys’ fees] by showing that his failure 9 is justified or that special circumstances make an award of expenses unjust.” 1970 Advisory 10 Committee Notes to Rule 37(b). 11 A district court’s “inherent authority to sanction parties for failing to comply 12 with its orders exists, in part, to prevent disobedience [of] the orders of the Judiciary, 13 regardless of whether such disobedience interfered with the conduct of trial.” Green v. Lisa 14 Frank, Inc. ___ P.3d ___, 2009 WL 303787, * 10 (Az. Ct. App. 2009) (citing Chambers v. 15 NASCO, Inc., 501 U.S. 32, 44 (1991) (quoting Young v. United States ex rel. Vuitton et 16 Fils, S.A., 481 U.S. 787, 798 (1987) (internal quotation marks omitted). “The threat of 17 sanctions promotes compliance with a court’s orders even if the sanctions threatened are 18 never imposed.” Id. at * 11. 19 DISCUSSION 20 Plaintiff’s failure to provide the Court and adverse counsel with a settlement 21 conference memorandum was the sole reason the settlement conference was vacated. By 22 December 5, 2008, defense counsel had already drafted and lodged their settlement 23 conference memorandum with the Court in compliance with the July 17, 2008 order. Thus, 24 when it became clear that Plaintiff was not going to submit a settlement conference 25 memorandum, it was too late for Defendants to avoid incurring the fees to prepare their 26 settlement conference memorandum. Fortunately, the Court’s staff was able to timely 27 communicate the settlement conference’s cancellation to defense counsel the morning of 28 December 5, 2008 before Defendants’ representatives and defense counsel appeared at the -6- 1 courthouse and additional fees and costs were incurred. 2 The requirement that Plaintiff provide the Court with a settlement conference 3 memorandum is not a petty or de minimus one. Settlement conference memoranda provide 4 the Court with a balanced view of the facts and issues from the claimant’s and defendant’s 5 perspectives so that the settlement judge, usually unfamiliar with the case, may fully 6 understand and identify the disputed facts and issues and thereby conduct a more 7 meaningful settlement conference. When the Court does not receive one side’s settlement 8 conference memorandum beforehand, the Court wastes valuable time during the settlement 9 conference to learn and evaluate the contested facts and issues. 10 Clearly, the July 17, 2008 Settlement Conference Order warned Plaintiff that 11 if he “fail[ed] to timely provide the settlement conference memoranda . . . the settlement 12 conference may be vacated and sanctions may be imposed pursuant to Rules 16(f) and 13 37(b)(2)[(A)(ii)-(vii)]. . . which may include . . . an award of reasonable attorney’s fees and 14 expenses and/or a finding of contempt.” (docket # 21 at 6) (citations omitted) The fact that 15 Plaintiff was acting pro se at the time does not discharge his obligation to “abide by the 16 rules of the court in which he litigates,” Carter v. Commissioner of Internal Revenue, 784 17 F.2d 1006, 1008 (9th Cir. 1986), and to comply with court orders. Ferdik v. Bonzelet, 963 18 F.2d 1258 (9th Cir. 1992). 19 Plaintiff has not shown, and the Court’s independent review does not 20 disclose, that Plaintiff’s failure to lodge a court-ordered settlement conference memorandum 21 was substantially justified or that an award of reasonable attorney’s fees against Plaintiff 22 would be unjust. In fact, the Court has considered a lesser “sanction” or alternative of 23 rescheduling another settlement conference but this option merely adds further delay to this 24 case which is rapidly approaching the March 13, 2009 discovery deadline. (docket # 18) 25 Moreover, recommending a dismissal sanction is overly harsh and premature. The sanction 26 of an award of attorneys’ fees substantially mitigates the damage or prejudice to Defendants 27 for their wasted settlement conference efforts; underscores the importance that all parties 28 and their lawyers fully comply with court orders; furthers the public policy of favoring -7- 1 disposition of Plaintiff’s claims on their merits; and fairly measures a consequence equal 2 to Plaintiff’s culpable conduct. Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 3 337, 348 (9th Cir. 1995) The Court finds that imposing the sanction of an award of 4 reasonable attorneys’ fees related to the failed settlement conference upon Plaintiff is fair 5 and just. Defendants’ Motion will be granted. 6 REASONABLE ATTORNEYS’ FEES 7 Defendants’ Motion for Sanctions and attached Declaration under oath 8 indicate “Defendants incurred attorneys’ fees in the amount of $3,958.50, preparing for the 9 Settlement Conference.” (docket # 41-2; Exh. 4 at 10) Attorney J. Greg Coulter “devoted 10 a total of 4.1 hours to preparing for the settlement conference and preparing Defendants’ 11 Motion for Sanctions.” (Id.) He avers his reduced billing rate for representing Defendants, 12 a Public School District and its administrators, teachers and board members, is $185.00 per 13 hour for his total fees of $758.50 (4.1 x $185.00). Attorney Coulter swears under penalty 14 of perjury that he “reviewed Littler Mendelson’s [Coulter’s law firm] billing records for this 15 matter from October 2008 to December 2008[]” and “Associate Emily Craiger devoted a 16 total of 20 hours to preparing for the settlement conference and preparing Defendants’ 17 Motion for Sanctions. Her billing rate is $160 per hour for a total of $3,200.00.” (Id. at 10- 18 11) Attorney Coulter further declares “[t]he legal work done during this time was 19 reasonable and necessary to prepare for the Settlement Conference.” (Id. at 11) 20 Defense counsel does not provide a breakdown of the exact time the two 21 lawyers spent on each specific task related to their preparation for the settlement conference, 22 e.g. time spent drafting their settlement conference memorandum, time spent drafting 23 Defendants’ Motion and Declaration, etc.9 Nevertheless, based upon the undersigned’s 24 combined 34 years as a trial judge and lawyer in private practice, the time of 24.1 hours 25 26 27 28 9 The District Court’s Local Rule and its related requirements for recovery of Attorneys’ Fees and Related Non-taxable Expenses expressly “does not apply to claims for attorneys’ fees and related non-taxable expense which may be recoverable . . . for violations of the Federal Rules of Civil Procedure or under 28 U.S.C. § 1927.” LRCiv 54.2(a) -8- 1 drafting Defendants’ high-quality settlement conference memorandum, organizing the 2 appropriate defense representatives to physically appear at the settlement conference, and 3 drafting their Motion and Declaration10 is fair and reasonable. Moreover, defense counsels’ 4 rates of $185.00 per hour and $160 per hour are quite reasonable in an era of significantly 5 higher hourly rates for lawyers of comparable experience and expertise. An award of 6 attorneys’ fees in the sum $3,958.50 is both directly related to the failed settlement 7 conference and is fair and reasonable. 8 Accordingly, 9 IT IS ORDERED that Defendants’ Motion for Sanctions, docket # 41, is 10 GRANTED. Defendants Glendale Union High School District, et al. are hereby collectively 11 awarded fees in the sum of $3,958.50 against Plaintiff Charles Okonkwo. Plaintiff Charles 12 Okonkwo shall pay this award of fees on or before April 10, 2009. 13 IT IS RECOMMENDED that if the fees are not paid in full on or before 14 April 10, 2009, a separate Judgment, pursuant to Rule 58(b)(2)(B), Fed.R.Civ.P., be entered 15 in favor of Defendants Glendale Union High School District, et al. and against Plaintiff 16 Charles Okonkwo in the sum $3,958.50, plus interest at the legal rate until the Judgment is 17 paid in full. 18 IT IS FURTHER ORDERED that Plaintiff’s Motion Objecting to Judge 19 Anderson’s Order/Motion for Reconsideration for New Settlement Conference Date, docket 20 /// 21 /// 22 /// 23 24 25 26 27 28 10 The Ninth Circuit allows for recovery of fees for attorneys’ work in seeking attorneys’ fees. Time spent preparing the fees application “must be included in calculating a reasonable fee because uncompensated time spent on petitioning for a fee automatically diminishes the value of the fee eventually received.” Anderson v. Director, Office of Workers Compensation Programs, 91 F.3d 1322, 1325 (9th Cir. 1996); Clark v. City of Los Angeles, 803 F.2d 987, 992 (9th Cir. 1986). -9- 1 # 38, are OVERRULED and DENIED without prejudice for the reason provided by 2 Plaintiff’s counsel during an informal telephonic conference on March 2, 2009. 3 4 5 IT IS FURTHER ORDERED that Defendants’ settlement conference memorandum shall be filed under seal. DATED this 4th day of March, 2009. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -
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