Solo et al v. American Association of University Women et al, No. 3:2015cv01356 - Document 116 (S.D. Cal. 2018)
Court Description: ORDER Granting 112 Motion for Sanctions. This sanction is levied solely against plaintiff's counsel Peter Schey. Consequently, Mr. Schey shall pay monetary sanctions in the amount of $3,578.50, to be delivered directly to AAUW by 09/14/2018. Such costs are not to be charged to Mr. Schey's client or reimbursed out of any settlement or judgment that may occur in the future. Signed by Magistrate Judge Clinton Averitte on 08/31/2018. (ajs)
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Solo et al v. American Association of University Women et al Doc. 116 1 2 UNITED STATES DISTRICT COURT 3 4 SOUTHERN DISTRICT OF CALIFORNIA Devyn SOLO, Case No.: 15-cv-1356-WQH-AGS 5 Plaintiff, 6 v. 7 AMERICAN ASSOCIATE OF 8 UNIVERSITY WOMEN, et al., 9 ORDER GRANTING MOTION FOR SANCTIONS Defendants. 10 11 Plaintiff’s counsel has violated Court orders four times. In an effort to avoid 12 responsibility, he proffers several excuses, none of which are valid. 1 His rationalization is 13 that he experienced failures with his email and was involved in other litigation. He even 14 attempts to shift blame to opposing counsel by stating they should have notified him. 15 This, however, is Federal Court and an attorney licensed to practice in Federal Court 16 cannot avoid his responsibilities to his client, to the Court, and to opposing counsel so 17 easily. Accordingly, for the reasons set forth below, the Court grants defendant’s request 18 for sanctions. 19 BACKGROUND 20 The Court, after all parties announced they were available on July 27, 2018, set that 21 date for the Early Neutral Evaluation and Case Management Conference. (ECF No. 105.) 22 The Court ordered the parties to submit confidential settlement statements to chambers, but 23 plaintiff’s counsel failed to timely submit such a statement. (See ECF No. 104.) Counsel 24 25 26 1 27 improper and would not be considered. (See ECF No. 115.) However, the Court 28 addresses some of the arguments made in that pleading. The Court found that Mr. Schey’s August 13, 2018 pleading (ECF No. 111) was 1 15-cv-1356-WQH-AGS Dockets.Justia.com 1 ultimately made the submission after the Court ordered him to show cause.2 (See id.) Then, 2 on July 25, 2018, just two days before the ENE, the parties moved to continue the ENE for 3 the second time. (See ECF Nos. 90 & 106.) This time, the parties needed to change the 4 ENE date because plaintiff’s counsel was no longer able to attend on July 27, 2018. (See 5 ECF No. 106.) The Court set a July 26, 2018 telephonic hearing on the motion to continue 6 and ordered Mr. Schey to initiate a joint call into chambers for the telephonic hearing on 7 the parties’ motion to continue. (ECF No. 107.) Mr. Schey failed to appear despite the fact 8 the continuance was sought at his request. (See ECF No. 108.) 9 The Court then ordered Mr. Schey, by July 30, 2018, to file a declaration informing 10 the Court why he did not attend the telephonic hearing and set an attorneys-only status 11 conference for July 31, 2018. (See id.) Again, Mr. Schey failed to follow this Court’s order 12 and submitted nothing. 13 Considering plaintiff’s counsel’s record of nonappearance for these those two 14 matters, the July 31, 2018 status conference was vacated and an Order to Show Cause was 15 issued ordering Mr. Schey to attend a show cause hearing on August 8, 2018. (See ECF 16 No. 109.) Again, Mr. Schey failed to appear. (See id.) Based on this record, the Court 17 ordered AAUW to submit a fee petition for fees and costs incurred after the parties filed 18 the joint motion to continue the ENE on July 25, 2018. (See ECF No. 110.) 19 20 AAUW now seeks monetary sanctions against plaintiff in the amount of $3,578.50 as compensation for the costs incurred, based on the following fees and expenses: 21 22 23 2 Mr. Schey informed the Court that he inadvertently failed to timely file plaintiff’s 24 confidential settlement statement because of his travel abroad with limited access to the 25 internet and his involvement in the Flores v. Sessions settlement. (ECF No. 114, at 9.) 26 According to Mr. Schey, his position as class counsel for Flores required his “immediate 27 and round-the-clock involvement in monitoring compliance with the settlement at 28 dentention sites throughout the country.” (Id. at 8-9.) 2 15-cv-1356-WQH-AGS 1 Attorney’s fees 2 [13.6 hours x $250.00 hourly rate] 3 Travel 148.50 4 Parking 30.00 5 (See ECF No. 112.) 6 $3,400.00 LEGAL STANDARD 7 Magistrate judges have the authority to issue sanctions based on a party’s or 8 attorney’s failure to obey scheduling or pretrial orders. Federal Rule of Civil Procedure 9 16(f) provides that if a party fails to obey the Court’s scheduling or other pretrial order, 10 “the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)– 11 (vii).” Fed. R. Civ. P. 16(f)(1). In addition to or in lieu of other sanctions, “the court must 12 order the party, its attorney, or both to pay the reasonable expenses–including attorney’s 13 fees–incurred because of any noncompliance with this rule, unless the noncompliance was 14 substantially justified or other circumstances make an award of expenses unjust.” Fed. R. 15 Civ. P. 16(f)(2) (emphasis added). 16 Further, Civil Local Rule 83.1(a) permits the Court to order sanctions for failure to 17 comply with the Local Rules or the Federal Rules of Civil Procedure. Specifically, Rule 18 83.1(a) provides: 19 20 21 22 23 24 25 Failure of counsel or of any party to comply with these rules, with the Federal Rules of Civil or Criminal Procedure, or with any order of the court may be grounds for imposition by the court of any and all sanctions authorized by statute or rule or within the inherent power of the court, including, without limitation, dismissal of any actions, entry of default, finding of contempt, imposition of monetary sanctions or attorneys’ fees and costs, and other lesser sanctions. Civ. L.R. 83.1(a). 26 27 28 3 15-cv-1356-WQH-AGS 1 “A showing of bad faith 3 is not necessary when the Court issues sanctions under 2 Rule 16 or the Local Rules.” White v. Papoutis, No. 16-CV-02694-JLS-DHB, 2017 WL 3 1020585, at *2 (S.D. Cal. Mar. 16, 2017) (citing Lucas Auto. Eng’g, Inc. v. 4 Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001) (finding appropriate the 5 district court’s issuance of sanctions under Federal Rule of Procedure 16 and the district 6 court’s local rules when the president of the plaintiff-business failed to appear at a 7 mediation session and gave no prior notice)). “Whether the party and/or its counsel 8 disobeyed the court order intentionally is impertinent; sanctions may be imposed when the 9 parties and their counsel disobey a court order.” Sanchez v. Brawley Elementary Sch. Dist., 10 No. 14-CV-00564-GPC-PCL, 2016 WL 3074404, at *1 (S.D. Cal. June 1, 2016) (citing 11 Lucas, 275 F.3d at 769). 12 13 14 15 16 DISCUSSION Rule 16(f) dictates that AAUW’s motion for sanctions be granted against plaintiff’s counsel in this case. Here, AAUW cooperated with plaintiff and filed a joint motion to continue the July 27, 2018 ENE to attempt to accommodate Mr. Schey’s schedule. 4 Mr. 17 18 3 AAUW and Mr. Schey both cite Chambers v. Nasco, Inc., 501 U.S. 32 (1991) and 19 refer to the Court’s inherent power impose sanctions not conferred by rule or statute. (See 20 ECF Nos. 112-1, at 2, & 114, at 15.) Mr. Schey claims that, under the Chambers standard, 21 the Court’s inherent power to impose sanctions only applies to bad faith conduct. (See ECF 22 No. 114, at 16.) As such, Mr. Schey argues that sanctions are inappropriate because he did 23 not disobey the Court’s orders intentionally. (See id. at 18.) However, both parties are 24 incorrect in their application of the Chambers inherent power standard to this case. Mr. 25 Schey violated both the Local Rules and Rule 16 of the Federal Rules of Civil Procedures. 26 4 Although he advised this Court he was available on July 27, 2018, Mr. Schey 27 subsequently either proposed or agreed to July 27, 2018 as a date for a hearing in the Flores 28 matter. (See ECF Nos. 103 & 112-2, at 10.) On June 13, 2018, this Court reset the ENE 4 15-cv-1356-WQH-AGS 1 Schey then violated three Court orders since the joint motion was filed and ultimately 2 caused AAUW to incur additional fees and costs. (See ECF Nos. 107-10.) 3 Mr. Schey first argues that he did not intentionally disregard the Court’s Orders. He 4 claims he “was not aware of those court Orders because his domain server stopped 5 forwarding his emails to his email account.” (ECF No. 114, at 4.) Mr. Schey claims he did 6 not receive the Court’s ECF Orders or become aware of the orders until August 11, 2018. 7 (See ECF No. 114, at 11.) “For technical reasons neither Plaintiffs’ counsel understands 8 […],” the emails issued by the ECF system from July 25 to July 31, 2018, were not 9 forwarded to Mr. Schey’s email account. (Id. at 12-13.) 10 Mr. Schey, however, accepts no responsibility for his failure to adequately monitor 11 this case. Instead, he asserts he “bear[s] no fault whatsoever for the technical failure that 12 resulted in [his] being unaware of this Court’s Orders issued between July 25 and 31, 13 2018.” (Id. at 13.) Moreover, Mr. Schey claims that had he “been aware that emails were 14 not being forwarded to his email account, he would have reviewed PACER on a daily basis 15 to monitor filings in this case.” (Id. at 13 n.9.) Such excuses are typically inadequate. See 16 Lucore v. Bank of N.Y. Mellon, 16-CV-03099-AJB-KSC, 2017 WL 1354798, at *4 (S.D. 17 Cal. Apr. 13, 2017) (noting that parties “are responsible for checking the court docket 18 throughout the filing process to ensure they are aware of any notices of entry of orders 19 from the court”). 20 Further, the proffered excuse avoids addressing the problem. The Court finds it 21 especially troubling that Mr. Schey assumed the parties’ joint motion to continue the ENE 22 would be granted. Aside from his excuses that he was traveling, busy with commitments 23 to other cases, and having email issues, Mr. Schey has provided NO explanation why he 24 25 26 date to the proposed July 27, 2018 date. (ECF No. 105.) Even though he was or should 27 have been aware of the conflicting settings, Mr. Schey failed to advise the Court of his 28 conflict until the eleventh hour. 5 15-cv-1356-WQH-AGS 1 failed to check and see if the motion for continuance was granted. Mr. Schey was ordered 2 to appear before the Court for an ENE on July 27, 2018, and there is no dispute he was 3 aware of that setting. On July 25, 2018–just two days before the scheduled ENE date–the 4 parties filed a joint motion to continue the ENE date. According to Mr. Schey, July 25, 5 2018, is the date he started having problems with his email account and stopped receiving 6 notification of the Court’s orders. That Mr. Schey was not receiving email notifications 7 not only did not relieve him of his duty to check the court docket to see if the motion was 8 granted or denied, but it would have made it all the more important. It was entirely 9 inappropriate for counsel to assume the motion was granted and the ENE date continued. 10 Here, the motion was not immediately granted and the parties were ordered to appear on 11 July 26, 2018 for a telephonic hearing. When the joint motion to continue the ENE was 12 filed, Mr. Schey had two options, and assuming the motion would be granted was not one 13 of them. Mr. Schey could either verify that the motion was granted or appear for the 14 scheduled ENE. Instead, Mr. Schey took no action to check the docket and then failed to 15 appear for the hearing. An attorney who assumes the Court will grant a motion, whether 16 opposed or unopposed, makes that assumption at his own peril–especially in a case that is 17 more than three year years old. 18 After failing to appear for the August 8, 2018 show cause hearing, Mr. Schey filed 19 a self-serving declaration explaining why he was not responsible for ignoring multiple 20 Court orders. (See ECF No. 111.) Mr. Schey’s submission is inadequate. The Court still 21 does not know the full story. The Court set the show cause hearing to allow Mr. Schey to 22 explain himself and to allow the Court to inquire about specific instances. Because Mr. 23 Schey failed to appear, these questions remain unanswered. While the Court has the power 24 to order another show cause hearing, doing so will only create further delay and expense. 25 Instead, the Court decides counsel’s conduct warrants this assessment of costs. 26 Under Civil Local Rule 83.4(b), “any attorney permitted to practice in this court 27 must be familiar with and comply with the standards of professional conduct required of 28 members of the State Bar of California, which are now adopted as standards of professional 6 15-cv-1356-WQH-AGS 1 conduct of this court.” The California Rules of Professional Conduct provide that an 2 attorney “shall not intentionally, recklessly, or repeatedly fail to perform legal services with 3 competence.” California Rule of Professional Conduct 3-110(A). “Competence” can mean 4 the “diligence […] reasonably necessary for the performance of such service.” California 5 Rule of Professional Conduct 3-110(B). 6 Although the Court declines to address whether Mr. Schey has breached the duty of 7 diligence owed to plaintiff, the Court stresses the importance for an attorney not to take on 8 more work than they can handle. That Mr. Schey was occupied with his role in the Flores 9 matter is no excuse for his lack of diligence in this matter. Mr. Schey agreed to represent 10 plaintiff in this matter and cannot raise his commitment to other matters as a defense for 11 failing to comply with this Court’s orders. 12 The question then, is what is the proper remedy for Mr. Schey’s violations of this 13 Court’s orders. The Federal Rules provide that it is appropriate for the Court to order an 14 attorney to pay as a sanction opposing counsel’s reasonable expenses, including attorney’s 15 fees, incurred because of the attorney’s noncompliance with a court order. Fed. R. Civ. P. 16 16(f)(2). Such an award is mandatory “unless the noncompliance was substantially justified 17 or other circumstances make an award of expenses unjust.” Id. As explained previously, 18 the Court finds Mr. Schey’s failure to comply was due to his own lack of diligence, so his 19 noncompliance was not substantially justified. Moreover, as explained in their declaration, 20 AAUW’s counsel wasted considerable time preparing, traveling, and appearing for Court- 21 ordered conferences and hearings Mr. Schey did not attend. 22 Determing whether attorney’s fees are reasonable typically involves calculating the 23 number of hours reasonably expended on the litigation multiplied by a reasonable hourly 24 rate. Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). The Supreme Court has 25 repeatedly reemphasized that discretion to determine the amount of a fee award lies with 26 the district court. Id. at 437. In this case, AAUW’s counsel requests compensatory 27 sanctions in the amount of $3,578.50, which is comprised of 13.6 hours of work at an 28 hourly billing rate of $250.00, as well as travel costs and parking fees. (ECF No. 112-1.) 7 15-cv-1356-WQH-AGS 1 AAUW’s counsel reviewed the Court’s orders, prepared for three Court-ordered hearings, 2 and attended Court-ordered hearings on July 26 telephonically and August 8, 2018 in 3 person. (See id.) Given the number of Court-ordered hearings AAUW prepared for and 4 which Mr. Schey failed to attend, the Court finds 13.6 hours to be a reasonable amount of 5 time. 5 A billing rate of $250.00 per hour is reasonable for an experienced attorney in the 6 San Diego market, so the Court also finds AAUW’s counsel’s billing rate to be appropriate. 7 Accordingly, the Court finds the issuance of sanctions, comprised of the fees and 8 expenses incurred by AAUW after the joint motion filed on July 25, 2018, to be warranted 9 against Mr. Schey. 10 CONCLUSION 11 Based on the foregoing, AAUW’s motion for their reasonable attorney’s fees and 12 expenses is granted. The Court awards AAUW the sum of $3,578.50 as sanctions for Mr. 13 Schey’s violation of Court orders. This amount represents the fees and costs incurred by 14 AAUW as a direct result of Mr. Schey’s violations. In light of counsel’s repeated 15 misconduct, the Court considered the imposition of additional monetary sanctions. 16 Although the imposition of additional monetary sanctions would be warranted, the Court 17 elects not to do so at this time and instead chooses to ADMONISH and WARN Mr. Schey 18 that future misconduct on his part may result in the imposition of much more severe 19 sanctions. 20 21 22 23 5 Mr. Schey claims that fees should not be awarded for the costs AAUW incurred to 24 appear at the August 8, 2018 hearing because AAUW’s counsel was not required to attend. 25 Although attendance was not required, AAUW’s counsel had every right to attend the 26 hearing. The Court is of the opinion AAUW’s counsel should have attended in order to 27 properly represent their client. Accordingly, reimbursement for AAUW’s cost of 28 attendance is warranted. 8 15-cv-1356-WQH-AGS 1 This sanction is levied solely against plaintiff’s counsel Peter Schey. Consequently, 2 Mr. Schey shall pay monetary sanctions in the amount of $3,578.50, to be delivered directly 3 to AAUW by September 14, 2018. Such costs are not to be charged to Mr. Schey’s client 4 or reimbursed out of any settlement or judgment that may occur in the future. 5 6 IT IS SO ORDERED. Dated: August 31, 2018 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 15-cv-1356-WQH-AGS
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