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M.O.R.E., LLC v. United States

United States District Court, N.D. California

February 11, 2015

M.O.R.E., LLC, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

ORDER TO SHOW CAUSE AND ORDER IMPOSING SANCTIONS Re: ECF Nos. 69, 72

JON S. TIGAR, District Judge.

I. BACKGROUND

This quiet title and wrongful levy action was filed on July 11, 2012. ECF No. 1. One of the plaintiffs, Mark Ottovich, currently represents himself in the action. ECF Nos. 51, 54.

On March 12, 2014, mail sent to Ottovich was returned as undeliverable. ECF No. 63. As a result, on July 17, 2014, the Court issued an Order to Show Cause why Ottovich's complaint should not be stricken pursuant to Civil Local Rule 3-11, which requires parties to notify the Court of any change in address.[1] ECF No. 65. In the order to show cause, the Court also continued the case management conference scheduled for July 23, 2014 to Wednesday, December 3, 2014, and advised Ottovich that if he filed a Notice of Change of Address within thirty days of the date of the order, the order to show cause would be vacated. ECF No. 65.

Plaintiff neither filed a change of address nor responded to the order to show cause. Instead, on December 1, 2014, he filed an individual case management statement, which was twelve days late, and lacking some of the information required by the Court, such as a proposed case schedule. ECF No. 67; see Standing Order for All Judges of the Northern District of California: Contents of Case Management Statement, available at http://cand.uscourts.gov/jstorders. It was evident that Ottovich had made no effort to confer with opposing counsel regarding the matters addressed by his statement, although he was under order to do so. See Standing Order for All Civil Cases Before District Judge Jon S. Tigar ("Failure to meet and confer regarding the required topics prior to the initial case management conference... may, in the reasonable exercise of the Court's discretion, result in sanctions or disciplinary action."), available at http://cand.uscourts.gov/jstorders.

The Court held the December 3, 2014 case management conference as scheduled, but Ottovich failed to appear at the conference. ECF No. 68.

Because Ottovich failed to appear at the December 3, 2014 case management conference, the Court issued another order to show cause why the Court should not impose monetary sanctions for his failure to appear. ECF No. 69. The Court set another order to show cause hearing, to occur simultaneously with a January 28, 2015 case management conference, and ordered Ottovich to file a response to the order to show cause by January 9, 2015. Id.

Ottovich filed a response to the OSC, claiming that (1) he was not feeling well on December 3 - in particular, that he has prostate-health issues and poor memory; (2) he is a veteran; (3) he relied on the other plaintiffs' counsel, Randal Schmidt's, ability to represent his interests at the conference; and (4) Schmidt failed to remind him to appear in court. ECF No. 70. Ottovich further explained that he "was surprised' by his sudden illness on the day of December 9 [sic], 2014, " and that Schmidt was "his legal and recognized representative" who could have represented his interests at the hearing. Id . Ottovich claimed that both of these reasons excused his failure to appear pursuant to Federal Rule of Civil Procedure 60(a). Id.

On January 28, 2015, the Court held the combined order to show cause hearing/case management conference. ECF No. 72. Ottovich again failed to appear at the hearing and did not notify the Court ahead of time or otherwise explain his absence. He has no further communication with the court since the hearing, other than to file a motion for permission for electronic case filing on behalf of another plaintiff. ECF No. 73.

II. LEGAL STANDARD

Rule 16(f) of the Federal Rules of Civil Procedure, provides that, on its own motion, "the court may issue any just orders... if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference;... or (C) fails to obey a scheduling or other pretrial order." Because the purpose of the rule is "to encourage forceful judicial management, " a court has broad discretion to sanction attorneys and parties who fail to comply with the court's reasonable case management orders. Alutiq Int'l Solutions, LLC v. Lyons, No. 2:11-cv-01104-GMN-PAL, 2012 WL 7801695, at *3 (D. Nev. Sep. 18, 2012) (citing Sherman v. United States , 801 F.2d 1133, 1135 (9th Cir. 1986). Rule 16 authorizes the court to impose the sanctions permitted by Rule 37 of the Federal Rules of Civil Procedure, which include dismissal of an action in whole or in part, and the payment of expenses. Fed.R.Civ.P. 37(b)(2)(A)(v), (B); see also Rule 3-9 ("Sanctions (including default or dismissal) may be imposed for failure to comply with local rules.").

Moreover, federal courts have inherent power to impose monetary or other sanctions in order to control the conduct of the proceedings, protect the "orderly administration of justice" and to maintain "the authority and dignity of the court." Roadway Express, Inc. v. Piper , 447 U.S. 752, 764-67 (1980) (citations omitted). Such sanctions can be imposed for bad faith or willful disobedience of a court order, after a litigant has been given notice and an opportunity to be heard. Id.

III. ANALYSIS

Rule 16 expressly permits the imposition of monetary or other sanctions when a party fails to appear at a court-ordered conference, or otherwise fails to obey with a pretrial order. There is no dispute that Ottovich did not attend the December 3, 2014 conference, as he was ordered to do, and no dispute that he also did not file an updated address ...


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