Unpublished Disposition, 908 F.2d 977 (9th Cir. 1987)

MEMORANDUM^** 

Assistant United States Attorney Mark Bennett appeals the district court's decision to affirm sanctions in the amount of $100 imposed against him by a magistrate pursuant to Fed. R. Civ. P. 16(f). The magistrate imposed sanctions against him ostensibly because Mr. Bennett failed to make arrangements for his or, alternatively, his substitute's timely appearance at a pretrial scheduling conference. We reverse.

FACTS

The following is a chronology of events leading to the present appeal:

--February 2, 1987: The Tamuras filed their complaint against the Federal Aviation Commission and others.

--April 6, 1987: The government, represented by Assistant United States Attorney (AUSA) Mark Bennett, filed a motion to dismiss or in the alternative for summary judgment.

--May 18, 1987: The district court took the government's motion under advisement.

--May 20, 1987: Pretrial scheduling conference assigned to Magistrate Tokairin continued until June 23, 1987.

On June 23, 1987, with the government's motion still under advisement, only plaintiffs' counsel appeared at the scheduling conference, and the Magistrate Tokairin again continued the conference until 8:30 am July 23, 1987, with instructions to plaintiffs' counsel to notify the government of the new time and date. On July 22, 1987, the district court granted in part and denied in part the government's motion for summary judgment. On July 23, 1987, the plaintiffs' attorney at 8:45 am notified the magistrate that he would be late to the conference but that he was on his way. At this time, the government's attorney had not arrived. The magistrate asked his clerk to call the United States Attorney's Office and tell Mr. Bennett to appear. At the same time, citing Mr. Bennett's failure to appear at the June 23, 1987 scheduling conference, the magistrate stated that he was going to "hit" Mr. Bennett "with a hundred bucks." (ER at 43). The conference was then continued until 9:00 am for the same day.

At 9:00 am, counsel for plaintiffs and AUSA Craig Nakamura, substituting for Mr. Bennett, arrived. The magistrate admonished plaintiffs' counsel for being late and, taking umbrage with counsel's failure to wear a coat to the conference, informed counsel that he could not appear in his court without a coat. Turning his attention to Mr. Nakamura, Mr. Nakamura informed the magistrate that Mr. Bennett was in Japan on business. In response, the magistrate again cited Mr. Bennett's failure to appear at the previous scheduling conference and told Mr. Nakamura to inform Mr. Bennett that he was to write a check to plaintiffs' counsel in the amount of $100. The magistrate then continued the scheduling conference until August 14, 1987.

That same day, the magistrate drafted a letter to Mr. Bennett. Initially, the magistrate noted the apparent understanding reached at the May 20, 1987 scheduling conference where all parties were present: that, if the district court had not yet ruled on the government's motion by June 23, 1987, only the plaintiffs' counsel or the government's counsel need appear to reset the conference. The magistrate next queried why Mr. Bennett did not appear at the June 23, 1987 scheduling conference. He asked whether plaintiffs' counsel told Mr. Bennett that he did not have to appear or whether he assumed that he did not have to appear. Finally, the letter informed Mr. Bennett that the July 23, 1987 scheduling conference had been continued because plaintiffs' counsel appeared without a coat.

In response, Mr. Bennett sent a letter to Magistrate Tokairin on July 28, 1987, explaining that he did not appear at the June 23, 1987 scheduling conference because he understood that if the district court had not ruled on the government's motion there would not be a June 23 scheduling conference. Mr. Bennett also explained that on July 23 he was in Tokyo, Japan on official business and that the United States Attorney's Office was supposed to have sent a substitute for him. Given these reasons, Mr. Bennett explained that he felt sanctions were unwarranted.

In lieu of a written order, the magistrate then drafted another letter to Mr. Bennett and imposed a sanction of $100. In this letter, the magistrate first noted the importance of pretrial scheduling conferences established by Federal Rules of Civil Procedure 16. He then explained that he could not accept Mr. Bennett's "assumptions" or "impressions" as good cause, justifying his nonappearance. The letter does not indicate to which "assumptions" or "impressions" the magistrate refers. Finally, with regard to Mr. Bennett's failure to appear because he was in Japan, the magistrate expressed his sympathy for Mr. Bennett's "predicament," but informed Mr. Bennett that "that matter concerns yourself and your office not the court." (ER at 26). Despite making much of Mr. Bennett's June 23 absence during the July 23 scheduling conference and in his first letter to Mr. Bennett, the magistrate made no reference to this initial absence in his letter order.

On Mr. Bennett's appeal from the magistrate's decision to impose sanctions, the district court affirmed. In addition to affirming the power of a magistrate to impose sanctions pursuant to Fed. R. Civ. P. 16(f), the district court held that the magistrate's decision was not clearly erroneous or contrary to law. In support of this conclusion, the district court noted that was Mr. Bennett's substitute thirty minutes late. Quite incorrectly, the district court also noted that Mr. Bennett's substitute arrived without a jacket. Mr. Bennett now appeals.¹ 

DISCUSSION

We review the imposition of sanctions pursuant to Fed. R. Civ. P. 16(f) for abuse of discretion. Ford v. Alfaro, 785 F.2d 835, 839 (9th Cir. 1986). A court abuses its discretion when its decision is based upon clearly erroneous factual findings or an incorrect legal standard, Ayers v. City of Richmond, 895 F.2d 1267, 1269-70 (9th Cir. 1990), or when the court "committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." United States v. Schlette, 842 F.2d 1574 (9th Cir. 1988) (internal quotes omitted).

Rule 16(f) grants judges the authority to impose monetary sanctions upon its own initiative when an attorney fails to obey a scheduling order, fails to appear at a scheduling conference, is unprepared to participate in a scheduled conference, or fails to participate in a scheduling conference in good faith. It was amended to Rule 16 to make explicit the previous assumption that judges had the power to sanction "disobedient or recalcitrant" attorneys for violations of their pretrial orders. Fed. R. Civ. P. 16 Advisory Committee's note. While Rule 16(f) empowers judges to levy sanctions, this circuit has never determined whether Rule 16(f) grants such authority to magistrates; however, the uncritical assumption is that Rule 16(f) grants magistrates such authority. See Ayers, 895 F.2d 1267; Ford, 785 F.2d 835. We have no reason in this case to question this assumption.² 

Having assumed that Magistrate Tokairin possessed the authority to levy Rule 16(f) sanctions, we now must determine whether his doing so was an abuse of discretion. The degree to which an attorney must manifest her disobedience or recalcitrance before Rule 16(f) sanctions become appropriate is unclear. Although certainly not dispositive of the issue, two of this circuit's most recent Rule 16(f) cases concerning the imposition of monetary sanctions are instructive of the predicate level of disobedience and recalcitrance necessary.

In Ford v. Alfaro, counsel twice failed to file pretrial statements, without notification, failed to attend a pretrial scheduling conference which both parties were required to attend, and filed two defective substitution of counsel forms. 785 F.2d at 837. This court determined that on the facts of that case the imposition of sanctions was not an abuse of discretion. In Ayers v. City of Richmond, this court affirmed sanctions when counsel failed to attend only one pretrial conference because it "slipped by him." 895 F.2d at 1269. The amount of sanctions imposed were the costs incurred by opposing counsel when forced to travel from Los Angeles to San Francisco to attend this conference.

Turning to the facts of this case, there is no indication in the record or the magistrate's letters that Mr. Bennett's actions even closely paralleled that of counsel in Ford. Nor is there any indication in the record or the magistrate's letters that opposing counsel incurred costs due to Mr. Bennett's nonappearance at the June 23 scheduling conference and the thirty minute delay of the July 23 conference.

Indeed, the facts of this case reveal no disobedience or recalcitrance on the part of Mr. Bennett whatsoever. Mr. Bennett did not appear at the June 23 scheduling conference because, as the magistrate's letter indicates, only one party had to make an appearance. With such an understanding, it is unfathomable how the magistrate could base his sanction in part on Mr. Bennett's "assumption" or "impression" that he did not have to appear. That Mr. Bennett's substitute, Mr. Nakamura, did not arrive until sometime after 8:30 am but before 9:00 am on July 23 is also not grounds for imposing sanctions on Mr. Bennett. Mr. Bennett made the appropriate arrangements for a substitute prior to his trip to Japan and did nothing to delay plaintiffs' counsel or his own substitute. In any regard, Mr. Nakamura's tardiness is mitigated by the fact that, even if he had arrived on schedule, the conference could not be held until at least 9:00 am because plaintiffs' counsel was not present until that time.

Nor is there any indication in the record that Mr. Bennett's actions somehow delayed or prevented the magistrate from holding the conferences as scheduled. Any delay was caused by the district court and the magistrate's idiosyncratic decorum requirements. The June 23 scheduling conference could not take place because the district court still had the government's motion under submission. The magistrate could have held the July 23 conference, albeit a half hour late, but elected not to do so because he thought plaintiffs' counsel was not properly attired for the occasion.

CONCLUSION

There is nothing in the record indicating that sanctions are warranted in this case. Having reviewed the record, we are convinced that the magistrate abused his discretion in levying such sanctions. Therefore, we reverse.

REVERSED.