The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Previously pending on this court's law and motion calendar for March 26, 2009, were this court's order to show cause, issued March 6, 2009, and defendant Horst Anton Wilhelm's*fn1 amended motion for terminating sanctions, or alternatively evidentiary sanctions, and for monetary sanctions, filed February 5, 2009. Plaintiff made no appearance. Joseph Cooper appeared telephonically on behalf of defendant Wilhelm. Based on the hearing and the filings, or lack thereof, the court now issues the following order addressing defendant's motion, and findings and recommendations in regard to the show cause order.
I. ORDER TO SHOW CAUSE RE: CONTEMPT CERTIFIED FACTS
This action was brought by plaintiff who alleges injuries suffered as a result of a motor vehicle accident involving plaintiff and defendants. Plaintiff seeks damages for defendants' alleged negligence. Jurisdiction is based on diversity. (Compl. at ¶¶ 1, 7.)
The first discovery motion brought to the court's attention concerned defendant Wilhelm's discovery propounded on plaintiff and plaintiff's total failure to respond to defendant's special interrogatories, set one, request for production of documents, set one, and request for admissions, set one. (Docket # 19.) This discovery was propounded on October 13, 2008, and despite three separate representations by plaintiff's counsel that responses would be forthcoming, plaintiff produced absolutely no responses. (Docket #21, ¶ 7.) Plaintiff and his former counsel, John Torjesen,*fn2 did not appear at the first hearing on January 8, 2009, but instead sent an attorney to specially appear. (Docket #58.) Since he was not attorney of record on the case, he was not permitted to be heard on the merits. Because plaintiff did not file an opposition and did not appear at the hearing, the motion was granted, and plaintiff was directed to respond to all discovery by January 16, 2009, as well as pay $700 in sanctions. Plaintiff was warned that failure to comply with this order would result in a recommendation that the case be dismissed. (Id.)
This matter next came to the court's attention when defendant Wilhelm moved to compel plaintiff's deposition and for sanctions. (Docket #29.) Plaintiff and defendant were ordered to file a joint statement five court days before the February 5, 2009 hearing. (Docket #56.) Plaintiff did not comply with this order to participate in the joint statement, did not otherwise oppose the motion, and did not appear at the hearing. (Docket #67.) In the order granting defendant's motion, this court reminded plaintiff of its previous order wherein it advised him that it would look unkindly on his failure to appear at his deposition. (Docket #69.) This order, issued February 10, 2009, directed both plaintiff and his counsel to personally appear for deposition in the jury room of the undersigned's courtroom, and that failure to do so might be grounds for contempt. Defendant's request for monetary sanctions was postponed until after the date for deposition had passed. (Id.)
Plaintiff and his counsel did not appear at the March 2, 2009 deposition. After reminding plaintiff of the previous warnings regarding dismissal, plaintiff and his counsel were ordered to show cause in re: contempt for their failure to obey court orders. (Docket #71.) They were directed to file a declaration by March 19, 2009 and to appear at the March 26, 2009 hearing. (Id.)
Plaintiff failed to file the previously ordered declaration, and he and his counsel failed to appear at the March 26, 2009 hearing. (Docket #73.) Also scheduled for hearing on that date was defendant's most recent motion for sanctions.
The docket report reflects that no orders served by the court on plaintiff's counsel in this case were returned as undeliverable, and that the pertinent orders were served on plaintiff's counsel at two email addresses. (Docket #s 56, 58, 69, 71, and notices of electronic filing.)
This court's order of March 6, 2009, required plaintiff and his counsel to personally appear and show cause in re: contempt for failing to obey this court's orders independent of any motion to dismiss or for sanctions brought by defendant. In addition to both plaintiff and his counsel's failure to appear, plaintiff did not file the requisite declaration.
Magistrate judges must refer contempt proceedings stemming from out-of-court action/inaction to district court judges. See 28 U.S.C. S 636(e); Bingman v. Ward, 100 F.3d 653, 656-57 (9th Cir.1996).
Where contempt is sought to compensate an aggrieved party for failure of an adverse party to comply with court orders, the asserted contempt is civil in nature. United States v. Asay, 614 F.2d 655, 659 (9th Cir. 1980). On the other hand, where contempt is imposed to vindicate the authority of the court following a completed act of disobedience, and the contemnor has no opportunity to purge himself of contempt, the contempt is criminal in nature. Bingman, 100 F.3d at 655-56. It must be remembered that one of the primary purposes of criminal contempt is to vindicate the authority of the court by punishing a past act of defiance. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir. 1983). The "great and only purpose [of the exercise of the power to punish for contempt] is to secure judicial authority from obstruction in the performance of its duties..." Ex Parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339 (1919).
In this case, the court's orders were clear and unambiguous, and the evidence establishes that plaintiff and attorney Torjesen did not comply with the orders. Moreover, there is no evidence of plaintiff or his attorney's inability to comply with the court orders. Plaintiff and his counsel clearly received all orders as none were returned to the court as undeliverable. They were also clearly aware of defendant's complaints about their refusal to participate in discovery as evidence by their communications with defendant in regard to written discovery, and their promises of future production. Furthermore, plaintiff's counsel sent a temporary attorney to represent plaintiff at the first discovery hearing, indicating his knowledge of defendant's motion. Such acts indicate knowledge and therefore a wilful intent to violate court procedures and orders. Bad faith is a necessary conclusion. Plaintiff and attorney Torjesen's acts of disobedience appear completed, and it may be appropriate to assess a fine which is unconditional and punitive, or incarceration, in order to vindicate the authority of the court. See Bingman, 100 F.3d at 655-56.
Only a district judge may enter orders of contempt in proceedings of this type. 28 U.S.C. § 636(e); Bingman v. Ward, 100 F.3d 653, 656-57 (9th Cir. 1996); On Command Video Corp. v. LodgeNet Entertainment Corp., 976 F. Supp. 917 (N.D. Cal. 1997). The undersigned may investigate whether further contempt proceedings are warranted and certify such facts to a district judge. 28 U.S.C. § 636 (e). The undersigned has concluded further contempt proceedings are warranted and ...