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In Re Sony Vaio Computer

February 25, 2011

IN RE SONY VAIO COMPUTER


The opinion of the court was delivered by: Ruben B. Brooks, Magistrate Judge United States District Court

ORDER IMPOSING SANCTIONS ON NOTEBOOK TRACKPAD LITIGATION PLAINTIFF RONALD FLYNN FOR FAILING TO ATTEND EARLY NEUTRAL EVALUATION CONFERENCE AND SETTING FURTHER PROCEEDING

Plaintiff Ronald Flynn failed to appear at the early neutral evaluation conference in this case ("ENE"), although the Ex Parte Application to Excuse Class Representatives' Personal Appearance at ENE was denied on January 14, 2011 [ECF Nos. 39, 45], and Flynn's Renewed Ex Parte Application to Excuse His Personal Appearance at ENE was denied on January 24, 2011 [ECF No. 48]. As a result, the Court issued an order to show cause why Plaintiff Flynn should not be sanctioned. (Mins., Jan. 24, 2011, ECF No. 48.) Flynn was to file any opposition to the order to show cause by January 31, 2011, and Defendant Sony Electronics, Inc. and Defendants Best Buy Co., Inc. and Best Buy Stores, L.P. ("Best Buy") were to file any reply by February 10, 2011. (Id.)

On January 31, 2011, Plaintiff Ronald Flynn's Opposition to Order to Show Cause Why Sanctions Should Not Issue re Failure to Appear at ENE was filed [ECF No. 51]. Defendants, on February 10, 2011, each filed a response to Plaintiff's Opposition [ECF Nos. 52, 53].

This Court, on February 14, 2011, requested that counsel for Sony and Best Buy each file a declaration outlining the fees and costs incurred by their clients to address Flynn's Opposition. (Mins., Feb. 14, 2011, ECF No. 55.) Counsel for Sony and Best Buy submitted their declarations on February 22, 2011 [ECF Nos. 56-58].

After considering the filings by the parties, the Court concludes that Plaintiff Ronald Flynn should be sanctioned in the amount, and for the reasons, outlined below.

DISCUSSION

Without question, this Court has the inherent power to assess sanctions for the "willful disobedience of a court order." Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 258-59 (1975). Rule 16(f) of the Federal Rules of Civil Procedure provides that the Court may sanction a party or its attorney if the party "fails to appear at a scheduling or other pretrial conference . . . ." See Fed. R. Civ. P. 16(f). Similarly, the local rules for the United States District Court for the Southern District of California state that "[s]anctions may be appropriate for the unexcused failure to attend [the ENE conference]." S.D. Cal. Civ. L.R. 16.1(c). The failure to comply with the Federal Rules of Civil Procedure or the Court's local rules may be ground for "imposition of monetary sanctions or attorneys' fees and costs, and other lesser sanctions." S.D. Cal. Civ. L.R. 83.1(a).

A. Flynn Willfully Failed to Appear

On January 11, 2011, Plaintiffs Christina Egner and Ronald Flynn filed an Ex Parte Application to Excuse Class Representatives' Personal Appearance at ENE [ECF No. 39]. In their Application, they sought permission to participate in the January 21, 2011 early neutral evaluation conference by phone. (Pls.' Ex Parte Appl. Excuse 4, ECF No. 39.) Attached to the Application was a declaration from Ronald Flynn. (Id. Decl. Flynn.) Plaintiff Flynn stated that he is the sole proprietor of his real estate business, and "[d]uring this time [January] I generally work six to seven days a week . . . ." (Id. at 2.) Flynn also stated that this period is "critical" to his business, because real estate transactions are "consummated in the second and third quarter." (Id.) In the Application, Plaintiffs contended that "[t]wo days of cross-country travel . . . will have a detrimental impact on Mr. Flynn's individual business." (Pls.' Ex Parte Appl. Excuse 4, ECF No. 39.)

Defendant, Sony Electronics, Inc. filed an Opposition to Plaintiffs' Ex Parte Application [ECF No. 40]. In its Opposition, Sony pointed out that between November 24, 2010, and December 6, 2010, Plaintiffs' and Sony's counsel discussed Plaintiffs' proposal that Egner and Flynn be excused from attending the early neutral evaluation conference. (Def. Sony Elecs. Inc.'s Opp'n 2, ECF No. 40.) During these discussions, the reason given for the request was "travel distance." (Id.) According to Sony,"[P]laintiffs did not mention plaintiff Flynn's work schedule . . . as a basis for their request." (Id.)

Defendant, Best Buy, filed its Response to Plaintiffs' Ex Parte Application to Excuse Class Representatives' Personal Appearance [ECF No. 41]. Best Buy did not expressly oppose Plaintiffs' request to be excused from personally attending the ENE. (Def. Best Buy Co., Inc.'s Resp. 1-2, ECF No. 41.) Instead, it stated, "If plaintiffs are excused from attending, so too should Best Buy's representative be permitted to participate by phone, and Best Buy pledges to have her available to do so." (Id. at 2.)

On January 14, 2011, Plaintiffs filed their Reply [ECF No. 44]. After considering all relevant facts and argument of counsel, the Court found that Plaintiff Flynn did not show good cause to be excused from attending the January 21, 2011 early neutral evaluation conference.

Six days later, on January 20, 2011, at 5:12 p.m., Flynn filed a Renewed Ex Parte Application to Excuse his Personal Appearance at ENE [ECF No. 46], which was scheduled for the next morning, January 21, 2011, at 8:30 a.m. In the Renewed Ex Parte Application, Plaintiffs' counsel stated, "Ronald Flynn intended to attend the ENE." (Pl. Ronald Flynn's Renewed Ex Parte Appl. 2, ECF No. 46.) This statement is incorrect. In his earlier January 11, 2011 declaration, Flynn stated, "If necessary I am willing and able to participate via telephone at the January 21, 2011 early neutral evaluation conference." (Pls.' Ex Parte Appl. Excuse, Decl. Flynn 2, ECF No. 39.) In his subsequent declaration, signed on January 20, 2011, Flynn made his intent clear. "I had intended to appear at the January 21, 2011 conference via teleconferencing." (Decl. Pl. Ronald Flynn Re Personal Appearance at ENE 2, ECF No. 47.) Furthermore, there is no evidence that Flynn purchased an airline ticket to travel to San Diego, let alone made a reservation, anytime before the January 21, 2011 conference. He did not intend to personally attend the ENE.

In his January 20, 2011 declaration, Flynn gave the following reasons to be excused from traveling ...


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