Gagan, et al v. Sharar, et al, No. 2:1999cv01427 - Document 475 (D. Ariz. 2013)
Court Description: ORDER granting attorney Carmichael's 451 Motion to Withdraw as Counsel for defendant James A. Monroe; denying the 466 Order to Show; and ORDERS the Clerk of the Court to place a copy of this order in the United States mail, postage prepaid, first class to defendant James A. Monroe's two addresses in Scottsdale, AZ. Signed by Senior Judge Robert C Broomfield on 4/1/2013.(LFIG)
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Gagan, et al v. Sharar, et al 1 Doc. 475 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 James L. Gagan, c/o David G. Bray Mariscal, Weeks, McIntyre Friedlander, P.A. 2901 N. Central Ave., Suite 200 Phoenix, AZ 85012, ) ) ) ) ) ) ) ) Plaintiff/Judgment ) Creditor, ) ) vs. ) ) James A. Monroe ) 12880 East Mercer Lane ) Scottsdale, AZ 85259, ) et al., ) ) Defendant/Judgment ) Debtor, ) ) No. CIV 99-1427-PHX-RCB O R D E R Currently pending before the court is a “Motion to 24 Withdraw as Counsel for Defendant Monroe” filed by attorney, 25 David H. Carmichael, on February 1, 2013 (Doc. 451). 26 February 11, 2013, this court ordered defendant James A. 27 Monroe to file 28 later than fourteen (14) days from the date of entry of this On “[a] response, if any,” to that motion by “no Dockets.Justia.com 1 order[,]” i.e., by February 25, 2013. 2 2:5-7 (emphasis in original). 3 filed a response, timely or otherwise. 4 See Ord. (Doc. 458) at To date, Mr. Monroe has not In the meantime, on February 22, 2013, plaintiff Gagan 5 filed a motion for an order to show cause (“OSC”), 6 “request[ing] that this Court issue a rule requiring James 7 Monroe to appear and show cause, if any, why he should not be 8 held in contempt of this Court, and if found to be in 9 contempt that the Court punish him by fine, the costs 10 incurred by Plaintiff to pursue this matter and for any other 11 relief the Court deems appropriate.” 12 2:20-23. 13 failure “to provide written discovery responses by February 14 18, 2013, in violation of this Court’s prior Orders.” 15 2:14-15, ¶ 6 (citations omitted). 16 Mot. (Doc. 464) at The basis for that motion is defendant Monroe’s Id. at On February 27, 2013, this court granted plaintiff’s OSC, 17 requiring Mr. Monroe to “appear before this Court on the 26th 18 day of March, 2013 at 10:00 a.m. in Courtroom 606, Sandra Day 19 O’Connor United States Courthouse, 401 West Washington, 20 Phoenix, Arizona 85003[.]” Ord. (Doc. 466) at 1:23-25. 21 Between the filing of plaintiff’s OSC motion and the order 22 granting that motion, on February 26, 2013, defendant Monroe 23 himself, not through his attorney, provided written responses 24 to plaintiff’s post-judgment discovery demands. 25 (Doc. 470), exh. A thereto (Doc. 470-1) at 2.1 26 See Mot. On March 26, 2013, plaintiff Gagan’s counsel, David Bray, 27 1 28 Defendant Monroe’s responses are the subject of plaintiff’s pending March 18, 2013, motion to compel. -2- 1 and defendant Monroe’s counsel, David Carmichael, appeared 2 before this court. However, defendant Monroe did not. 3 that hearing, both lawyers addressed, inter alia, the court’s 4 previously stated concerns “as to whether Mr. Monroe has had 5 actual notice of: (1) 6 (2) the court’s order permitting Mr. Monroe to file a 7 response to that motion; (3) plaintiff Gagan’s motion for an 8 OSC; and (4) this court’s order granting that OSC.” 9 Ord. (Doc. 472) at 4:18-22. During his attorney’s motion to withdraw; See 10 After carefully considering all of submissions relating 11 thereto, and the arguments of counsel, based upon the record 12 as more fully developed during that hearing, as fully 13 explained below, the court finds that Mr. Monroe had “actual 14 notice” of each of the listed documents. 15 I. Motion to Withdraw 16 A. 17 The court is satisfied that Mr. Monroe had actual notice Notice 18 of his attorney’s motion to withdraw. 19 Monroe and attorney Carmichael provide the strongest 20 indication of that notice.2 21 informed Mr. Monroe, among other things, that “[p]ursuant to 22 [their] recent communications of the last weeks,” 23 “filing a Motion to Withdraw as Counsel” in this action. 24 Importantly, that e-mail recites that Mr. Monroe “advised” 25 attorney Carmichael “that [he] consent[ed] to [Carmichael’s] 26 withdrawal and ha[d] indicated that [he] would be consulting Two e-mails between Mr. Via e-mail, attorney Carmichael he would be 27 2 28 Attorney Carmichael provided these e-mails to the court during the March 26, 2013 hearing. -3- 1 with one of the attorneys whom [Mr. Carmichael] recommended 2 to” Mr. Monroe. 3 “very much appreciate [Mr. Monroe’s] confirming that consent 4 and agreement by reply to this email . . . at the earliest 5 time possible.” 6 Attorney Carmichael expressed that he would Mr. Monroe’s responding February 5, 2013, e-mail evinces 7 that he had actual notice of attorney Carmichael’s intent to 8 file a motion to withdraw. 9 explicitly informed attorney Carmichael, among other things, In that e-mail, Mr. Monroe 10 that he “understand[s] that [Mr. Carmichael] desire[s] to 11 withdraw as [his] Counsel in the US District Court case in 12 Arizona[.]” 13 (Feb. 5, 2013 11:01 AM). 14 had “no objection to [Mr. Carmichael’s] withdrawal[.]” Id. 15 Mr. Monroe did condition such withdrawal upon attorney 16 Carmichael’s continued representation of Monroe in the 17 “Homestead Exemption matter pending before . . . the Arizona 18 Supreme Court in Arizona[.]” E-mail from James Monroe to David Carmichael Moreover, Mr. Monroe wrote that he Id. 19 In addition to receiving e-mail notice of his attorney’s 20 intent to file a motion to withdraw, the record shows that on 21 February 1, 2013, a “COPY” of the actual motion, addressed to 22 Mr. Monroe at “P.O. Box 5322 Scottsdale, AZ[] 85261[,]” was 23 “deposited in the U.S. Mail[.]” See Mot. (Doc. 451) at 2. Mr. 24 Carmichael’s office mailed the withdrawal motion to that P.O. 25 Box, as opposed to a residence, because that is the mailing 26 address Monroe provided to Carmichael; and, “within the last 27 probably year – at least,” that is the “only physical mailing 28 address” his office had for Mr. Monroe. -4- Court Recording 1 (March 26, 2013)3 at 10:11:51 - 10:12:22 a.m. 2 significant because “[i]t is generally accepted that 3 ‘[s]ervice by mail is accomplished, for purposes of Rule 5,4 4 when documents are placed in the hands of the United States 5 Post Office or in a Post Office Box.’” Hernandez v. Gates, 6 2004 WL 291225, at *1 (C.D.Cal. Feb. 5, 2004) (quoting, inter 7 alia, Theede v. United States Dept. of Labor, 172 F.3d 1262, 8 1266 (10th Cir. 1999); and 4B Charles Alan Wright & Arthur R. 9 Miller, Federal Practice and Procedure § 1148 at 453 (3d ed. This mailing is 10 2002)). 11 experience that Mr. Monroe “always received” mail sent to that 12 address. 13 Additionally, it has been attorney Carmichael’s Tr. at 10:12:25-27 a.m. The strongest indication that Mr. Monroe had actual 14 notice of this court’s permitting him to file a response to 15 the withdrawal motion is an e-mail from attorney Carmichael to 16 3 17 18 19 20 21 22 23 24 25 26 27 The foregoing refers to the court’s simultaneous recording of the March 26, 2013 proceeding. For ease of reference, hereinafter the court will refer to this recording as “Tr.[,]” although no actual physical transcript exists. 4 According to Fed.R.Civ.P. 5(b)(2)(C), “[a] paper is served under this rule by . . . mailing it to the person’s last known address – in which event service is complete upon mailing[.]” Responding to this court’s inquiry, “What is [Mr. Monroe’s] last known physical address[,]” attorney Carmichael stated that it was “12880 East Mercer Lane, Scottsdale, Arizona.” Tr. 10:09:42 a.m. - 10:10:03 a.m. The basis for that answer was Mr. Monroe’s October 30, 2012, testimony during an Arizona Superior Court matter. Id. at 10:10:4-21 a.m. Based upon the foregoing, arguably the East Mercer Lane address was Mr. Monroe’s “last known address” within the meaning of Rule 5. Under the particular circumstances of this case, however, the court declines to make such a finding. Instead, it finds that insofar as attorney Carmichael and his office are concerned, when the motion to withdraw was mailed, Mr. Monroe’s “last known address” was his Scottsdale P.O. Box. That is because, as discussed above, that is the only mailing address Mr. Monroe provided to attorney Carmichael and, in accordance with Mr. Monroe’s instructions, that is the only address Carmichael’s office used for mailings to Mr. Monroe. Id. at 10:10:29-42 a.m. 28 -5- 1 defendant Monroe. 2 MST. Ord. (Doc. 458) Notice of Electronic Filing (“NEF”) at 1. 3 Within the next half hour, at 12:09 p.m., attorney Carmichael 4 e-mailed Mr. Monroe, attaching a copy of that order, adding, 5 “Let me know if there is something you want me to do to assist 6 you with a response if you want to make one.” 7 David Carmichael to James Monroe (Feb. 11, 2013 12:09 PM). 8 This prompt e-mail is indicative of Mr. Carmichael’s diligence 9 in keeping Mr. Monroe apprised of the status of this action. The court’s order was entered on 11:41 a.m. E-mail from 10 Indeed, as Mr. Carmichael explained, because he is still 11 Monroe’s counsel of record, every document which is served 12 upon Mr. Carmichael in that capacity, he, in turn, “serves” 13 upon Mr. Monroe via e-mail. 14 Tr. at 10:06:27-44 a.m. The foregoing satisfies this court that defendant Monroe 15 had actual notice of attorney Carmichael’s motion to withdraw, 16 as well as the court’s order permitting Monroe to file a 17 response to that motion. 18 B. 19 Given that notice finding, the court will turn to the Merits 20 merits. 21 reasonable inference from Mr. Monroe’s February 11, 2013, e- 22 mail, especially in the absence of any response to this 23 withdrawal motion, is that Mr. Monroe consents to the granting 24 of such relief, albeit 25 Furthermore, although plaintiff Gagan does not oppose this 26 motion, he, too, wants a condition placed upon the granting of 27 such relief. 28 plaintiff wants the court to “order[]” defendant Monroe “to Before doing so, it is worth noting that the only conditionally, as mentioned above. To avoid incurring process serving costs, -6- 1 provide . . . a physical address” to which pleadings can be 2 mailed. 3 Tr. at 10:28:32 a.m. - 10:28:49 a.m. LRCiv 83.3(b) governs attorney withdrawal and “sets forth 4 the technical requirements for withdrawing as counsel of 5 record in the District Court of Arizona.” 6 2010 WL 5067695, at *1 (D.Ariz. Dec. 7, 2010). 7 record may not withdraw: 8 9 10 Bohnert v. Burke, An attorney of in any pending action except by formal written order of the Court, supported by written application setting forth the reasons therefore together with the name, last known residence and last known telephone number of the client[.] 11 LRCiv 83.3(b). 12 withdraw “does not bear the written approval of the client, it 13 shall be made by motion and shall be served upon the client 14 and all other parties or their attorneys.” 15 In addition where, as here, the motion to LRCiv 83.3(b)(2). Pursuant to LRCiv 83.3(b), Mr. Carmichael’s supporting 16 “Certification” provides his client’s name and “last known 17 telephone number[.]” See Cert’n (Doc. 451-1) at 1:24-25. 18 Although that Certification provides Monroe’s “last known 19 address[,]” 20 at 1:23-24, it does not provide his “last known residence[,]” 21 in accordance with LRCiv 83.3(b). 22 omission, chiefly because Mr. Monroe advised attorney 23 Carmichael that he received mail at that P.O. Box, and that is 24 how he wanted Mr. Carmichael to communicate with him. 25 10:12:42 -55 a.m. 26 with LRCiv 83.3(b) is preferable, under the particular 27 circumstances herein, the court is willing to excuse the fact 28 that in seeking withdrawal, attorney Carmichael did not i.e. the Scottsdale P.O. Box, Cert. (Doc. 451-1) The court can overlook that Tr. at Thus, while generally strict compliance -7- 1 2 indicate his client’s “last known residence.” A “written application” for attorney withdrawal also 3 should “set[] forth the reasons therefore[.]” LRCiv 83.3(b). 4 Attorney Carmichael’s Certification is silent on that point. 5 As discussed momentarily, however, those reasons are ample and 6 became abundantly clear during the March 26, 2013 hearing. 7 So, once again, under the particular circumstances of this 8 case, the court will overlook this “technical” omission. 9 Bohnert, 2010 WL 5067695, at *1. 10 See Insofar as service under LRCiv 83.3(b)(2) is concerned, 11 as discussed with respect to notice, the court finds that 12 defendant Monroe was served for purposes of that Rule. 13 Hernandez v. Gates, 2004 WL 291225, at *1 (C.D.Cal. Feb. 5, 14 2004) (commenting that in the context of Fed.R.Civ.P. 5, 15 “context plays an important role in determining whether 16 adequate service has been effected in a given case[]”). 17 Further, there is no dispute that “all other parties or their 18 attorneys[]” were also served in accordance with that Rule. 19 See LRCiv 83.3(b)(2). 20 Cf. Having addressed LRCiv 83.3(b)’s requirements, next, the 21 court will address the broader issue of whether, in the 22 exercise of its “discretion,” it should grant attorney 23 Carmichael’s motion to withdraw. 24 4848962, at *1 (S.D.Cal. Oct. 10, 2012) (citation omitted). 25 “Factors that a district court should consider when ruling 26 upon a motion to withdraw as counsel include: (1) the reasons 27 why withdrawal is sought; (2) the prejudice withdrawal may 28 cause to other litigants; (3) the harm withdrawal might cause -8- See Chaker v. Adams, 2012 WL 1 to the administration of justice; and (4) the degree to which 2 withdrawal will delay the resolution of the case.” 3 2010 WL 5067695, at *1 (citing, inter alia, In re Ryan, 2008 4 WL 4775108, at *3 (D.Or. Oct. 31, 2008)). 5 Bohnert, Whether viewed individually or collectively, these 6 factors weigh heavily in favor of granting attorney 7 Carmichael’s withdrawal motion. 8 for allowing attorney withdrawal here is the erosion of the 9 attorney-client relationship between Mr. Carmichael and The most compelling reason 10 defendant Monroe. 11 erosion. 12 any idea at all” as to his client’s whereabouts. 13 10:29:57 - 10:30:07 a.m. 14 not defendant Monroe is in Arizona or elsewhere. 15 generally id. at 10:31:44 - 10:32:10 a.m. 16 There are several manifestations of this The first is that attorney Carmichael does not “have Tr. at He is not even certain whether or Second, attorney Carmichael has not had a See “face-to-face 17 conversation with Mr. Monroe” for nearly four months. 18 10:15:21-27a.m. 19 . . . on October 30th [2013] 20 [Arizona] Superior Court.” 21 attorney Carmichael has not spoken with or seen Mr. Monroe 22 since mid-December, 2012. 23 despite attorney Carmichael’s efforts to “continue to urge 24 [Mr. Monroe] to appear in court and do the things that are 25 asked of him, [Monroe] has not responded to [Carmichael] in 26 any way at all.” 27 28 Id. at The last such conversation was “probably – the day of the trial in Id. at 10:15:28-30 a.m. Id. at 10:16:30-45 a.m. Third, Fourth, Id. at 10:31:20-36 a.m. Additional evidence of the erosion of the attorney-client relationship is found in a March 7, 2013, e-mail to Mr. -9- 1 Monroe, with a copy to plaintiff’s attorney, Mr. Bray. 2 that e-mail, attorney Carmichael explicitly did “no[t] 3 object[]” to plaintiff’s attorney “contacting [Mr. Monroe] 4 directly.” 5 And, indeed, wholly independent of attorney Carmichael, after 6 receiving plaintiff’s discovery demands via e-mail from 7 attorney Carmichael, Mr. Monroe contacted plaintiff’s 8 attorney. 9 February 26, 2013, In Mot. (Doc. 470), exh. B thereto (Doc. 470-2) at 2. See Tr. at 10:30:45 a.m. - 10:31:07 a.m. On plaintiff’s attorney received, from 10 defendant Monroe himself, his written responses to plaintiff’s 11 discovery demands. 12 470-1) at 2; see also Tr. at 10:30:51 - 10:31:07 a.m. 13 Attorney 14 because Mr. Monroe did not provide him with a copy. 15 10:31:15 a.m. 16 demonstrates, he “is out of the loop with [Mr. Monroe].” 17 at 10:31:17-19 a.m. 18 See Mot. (Doc. 470), exh. A thereto (Doc. Carmichael “never” saw those responses, however, Id. at As attorney Carmichael put it, and the record Id. Further, when Mr. Monroe has been directed to appear in 19 this court, which has “happened at least twice[,]” attorney 20 Carmichael has “urged” Monroe to appear, but he does not. 21 at 10:33:02-12 a.m. 22 candidly and bluntly put it, he “ha[s] no control[]” over 23 defendant Monroe. 24 candor, and as the record vividly shows, attorney Carmichael 25 admitted that he has not gotten “cooperation” from defendant 26 Monroe[;] “it’s an impossible circumstance.” 27 42 a.m. 28 past two years, attorney Carmichael has continued to represent Id. That is because, as attorney Carmichael Id. at 10:33:13-14 a.m. With equal Id. at 10:37:38- Notably, despite this lack of cooperation, for the - 10 - 1 2 defendant Monroe pro bono. Id. at 10:37:26-29 a.m. The “conflict of interest between” defendant Monroe and 3 his attorney, Mr. Carmichael, also factors into the court’s 4 finding that there are justifiable reasons for allowing 5 attorney Carmichael to withdraw as counsel here. 6 David Carmichael to James Monroe. 7 not elaborate upon that conflict, it is not as significant as 8 the overall erosion of the attorney-client relationship. 9 Nonetheless, it is a consideration. E-mail from Because Mr. Carmichael did All of the reasons 10 outlined above justify granting attorney Carmichael’s motion 11 to withdraw. 12 As to the prejudice factor, during the hearing, 13 plaintiff’s attorney implied prejudice arising from his 14 inability to definitively ascertain a “physical address” to 15 which he can “mail pleadings” to defendant Monroe. 16 10:28:41-48 a.m. 17 the reasons discussed 18 Undermining a finding of prejudice is the fact that when asked 19 if anything sent to defendant Monroe at the East Mercer Lane 20 address had been returned as undeliverable, plaintiff’s 21 attorney responded, “I don’t believe that we’ve gotten return 22 mail from that address[,]” or that he has received a notice of 23 return or of a “bad address from the post office.” 24 10:25:35-59 a.m. Tr. at That suggested prejudice does not outweigh favoring withdrawal in this case. Id. at 25 Second, when attempting to serve post-judgment discovery 26 requests upon either defendant Monroe or Ms. Sullivan5 at the 27 5 28 Ms. Sullivan is defendant garnishee/defendant in this action. - 11 - Monroe’s daughter and a 1 East Mercer Lane address, Mr. Monroe “answered the door and 2 accepted service.” 3 understanding that the East Mercer Lane address is Ms. 4 Sullivan’s house, and that Mr. Monroe was living there with 5 her. 6 Id. at 10:23:15-30 a.m. It is plaintiff’s Id. at 10:45-52 a.m. Third, when considering possible prejudice, one of the 7 sources for using the East Mercer Street address is 8 plaintiff’s most recent attorney, Mr. Bray. 9 filing his Notice of Appearance on September 10, 2012 (Doc. Immediately upon 10 393), attorney Bray filed six Applications for Writ of 11 Garnishment. 12 “Defendant/Judgment Debtor[]” as “JAMES A. MONROE 12880 East 13 Mercer Lane Scottsdale, AZ 85259[.]” See, e.g., Appl’n (Doc. 14 394) at 1. 15 each of those applications provides that the “last known 16 addresses of the Defendant/Judgment Debtor [Monroe] are 1092 17 North 115th Street, Unit 2053, Scottsdale, AZ and” the East 18 Mercer Lane address as recited in the caption. 19 Summons (Doc. 394-2) at 2, ¶ 4 (emphasis added). 20 with the foregoing, attorneys Carmichael and Bray both 21 recalled that Mr. Monroe testified in Arizona Superior Court 22 that his address is 12880 East Mercer Lane, Scottsdale, 23 Arizona. 24 The caption of each identifies The Summons and Writ[s] of Garnishment attached to See, e.g., Consistent Finally, as is evident, attorneys Carmichael and Bray are 25 at least equally well-positioned to ascertain defendant 26 Monroe’s last known “physical address.” 27 finds no merit to any implication that plaintiff Gagan will be 28 prejudiced by allowing attorney Carmichael to withdraw as - 12 - Therefore, the court 1 2 defendant Monroe’s counsel in this case. As to the last two withdrawal factors, there has been no 3 suggestion, and the court can conceive of none, how allowing 4 attorney Carmichael to withdraw will harm the administration 5 of justice or cause undue delay to the resolution of this 6 case. 7 all of the reasons set forth above, the court hereby GRANTS 8 attorney Carmichael’s “Motion to Withdraw as Counsel for 9 Defendant Monroe” (Doc. 451). 10 Consequently, in the exercise of its discretion, for Because the court is granting that motion, unless and 11 until defendant Monroe retains substitute counsel, he will be 12 proceeding pro se. 13 insofar as the court is concerned, his “last known address” is 14 12880 East Mercer Lane Scottsdale, Arizona 85259. 15 Fed.R.Civ.P. 5(b)(2)(C). 16 defendant Monroe to notify the court and counsel of any change 17 in that address. LRCiv 83.3(d) (“An . . . unrepresented party 18 must file a notice of a[n] . . . address change[.]”); see also 19 Khalafala-Khalafala v. U.S., 2012 WL 6783567, at *1 (D.Ariz. 20 Dec. 7, 2012), (quoting Carey v. King, 856 F.2d 1439, 1441 (9th 21 Cir. 1988)) (“A party, not the district court, bears the 22 burden of keeping the court apprised of any changes in his 23 mailing address.”), adopted, 2013 WL 69176 (D.Ariz. Jan. 7, 24 2013). 25 proof that a copy of such address change had been provided to 26 plaintiff’s counsel, David Bray, it will continue to provide 27 copies of its orders to defendant Monroe by placing a copy of 28 such orders in the United States mail, postage pre-paid, first Defendant Monroe thus is advised that See It will therefore be incumbent upon Until the court is otherwise notified in writing, with - 13 - 1 class to James A. Monroe 12880 East Mercer Lane, Scottsdale, 2 Arizona 85259. Additionally, as to this order only, the court 3 ORDERS the Clerk of the Court to also place a copy of this 4 order in the United States mail, postage pre-paid, first class 5 to James A. Monroe P.O. Box 5322, Scottsdale, Arizona 85261. 6 II. Motion/Order to Show Cause 7 1. 8 A copy of plaintiff Gagan’s OSC motion (Doc. 464) was Notice 9 “placed . . . in the U.S. mail, postage prepaid, first class 10 to . . . James A. Monroe 12880 East Mercer Lane Scottsdale, 11 Arizona 85259[.]” Mot. (Doc. 464) at 4:4-7. The present 12 record convinces this court that insofar as plaintiff is 13 concerned, that is defendant Monroe’s “last known address.” 14 See Fed.R.Civ.P. 5(B)(2)(C). 15 mailing[.]” Id. Thus, service was “complete upon Moreover, there is nothing in the record 16 showing non-delivery, which is consistent with attorney Bray’s 17 statement that he does not believe any mail has been returned 18 as undeliverable from that address. 19 Furthermore, because he is the attorney of record, Mr. 20 Carmichael’s practice had been to “serve” Mr. Monroe, via e21 mail, with “every document” which has been served upon Mr. 22 Carmichael. Tr. at 10:06:28-51 a.m. In accordance with that 23 practice, Mr. Carmichael e-mailed a copy of the OSC to 24 defendant Monroe, Tr. at 10:13:21-26 a.m.; but he does not 25 remember whether he had “any indication from any 26 communication” from Mr. Monroe indicating whether he “in fact” 27 received, inter alia, the OSC. Id. at 10:14:42 a.m. - 28 10:15:53 a.m. - 14 - 1 Even if the foregoing did not convince this court that 2 defendant Monroe had actual notice of plaintiff’s OSC motion, 3 defendant Monroe’s attorney of record, attorney Carmichael was 4 electronically served with that motion, as well as the court’s 5 OSC. Mot. (Doc. 464), NEF at 2; OSC (Doc. 466), NEF at 2. 6 Accordingly, the court deems defendant Monroe to have had 7 notice of both the OSC motion and the OSC itself through 8 service upon his attorney. Cf. Fed.R.Civ.P. 5(b)(1) (“If a 9 party is represented by an attorney, service under this rule 10 must be made on the attorney unless the court orders service 11 on the party.”); and N.R.R.B. v. Sequoia Dist. Council of 12 Carpenters, 568 F.2d 628, 633 (9th Cir. 1977) (service of 13 judgment on union’s attorney gave union sufficient notice to 14 bind it to terms of the judgment such that “the union was 15 clearly bound to abide by it[]”). 16 2. 17 Pursuant to this court’s order, defendant Monroe was Merits 18 required to provide written discovery responses to plaintiff 19 by no later than February 18, 2013, as mentioned at the 20 outset. Ord. (Doc. 457) at 2:14-15, ¶ (2). When defendant 21 Monroe did not respond by that date, four days later, on 22 February 22, 2013, plaintiff filed his OSC motion directed to 23 those tardy discovery responses. In the meantime, defendant 24 Monroe did respond, but not until February 26, 2013 25 days late. 26 – eight Mot. (Doc. 470), exh. A thereto (Doc. 471-1) at 2. Given that relatively short delay, the court, in the 27 exercise of its discretion, declines to hold defendant Monroe 28 in contempt for the untimely filing of his written discovery - 15 - 1 responses. Furthermore, especially because the court is 2 granting attorney Carmichael’s motion to withdraw, defendant 3 Monroe is advised that if he violates any further court 4 orders, he proceeds at his peril. Defendant Monroe is further 5 advised that, upon the proper showing, any future violations 6 of this court’s orders could result in his being held in civil 7 or criminal contempt. Possible sanctions for such contempt 8 are fines and imprisonment. At this time, however, the court 9 DENIES the Order to Show Cause (Doc. 466). 10 Conclusion 11 For all of these reasons, the court hereby: 12 (1) GRANTS attorney Carmichael’s Motion to Withdraw as Counsel for defendant James A. Monroe (Doc. 451); 13 (2) DENIES the Order to Show (Doc. 466); and 14 17 (3) ORDERS the Clerk of the Court to place a copy of this order in the United States mail, postage prepaid, first class to defendant James A. Monroe 12880 East Mercer Lane, Scottsdale, Arizona 85259 and to defendant James A. Monroe P.O. Box 5322, Scottsdale, Arizona 85261. 18 DATED this 1st day of April, 2013. 15 16 19 20 21 22 23 24 25 26 Copies to counsel of record; James A. Monroe (12880 East Mercer Lane, Scottsdale, Arizona 85259 and P.O. Box 5322, 27 Scottsdale, Arizona 85261); and Kimberly Sullivan (12880 East Mercer Lane, Scottsdale, Arizona 85259). 28 - 16 -
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