Henry v. Somerton, City of ( 2021 )


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  • 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Stephen Henry, et al., No. CV-18-03058-PHX-DJH 10 Plaintiffs, ORDER 11 v. 12 City of Somerton, et al., 13 Defendants. 14 15 Pending before the Court is nonparty Martin Porchas’ Motion for Relief (Doc. 75) 16 from this Court’s Order finding him in civil contempt of court. Plaintiffs have filed a 17 responsive memorandum (Doc. 76). The time for Mr. Porchas to file a reply has since 18 expired. See LRCiv 7.2. 19 On November 17, 2020, after Mr. Porchas failed to respond to an Order to Show 20 Cause, the Court found him in civil contempt for failing to comply with Plaintiffs’ 21 subpoenas and the Order to Show Cause. (Doc. 69). Because Mr. Porchas had failed to 22 timely object to the subpoenas, the Court found that Mr. Porchas had waived any objection 23 to them. (Id. at 2). The Court also ordered Plaintiffs serve an affidavit of their pertinent 24 costs and fees incurred on Mr. Porchas, who would then be permitted to object “solely to 25 the reasonableness of the amounts sought.” (Id. at 3). 26 Mr. Porchas’ Motion for Relief is the only filing this Court has received from him. 27 In it, he seeks “civil relief” from Plaintiffs’ request of $3,480 in attorney fees. (Doc. 75 28 at 6). Instead of arguing about the reasonableness of the amount, as the Court had ordered, 1 Mr. Porchas asserts that he is not able to fully comply with Plaintiffs’ subpoenas. (Id.) He 2 also asserts that he filed an “answer” with the Court on November 4, 2020, presumably 3 contesting the subpoenas. (Id.) Again, a review of the docket shows that the Court has 4 only received one filing from Mr. Porchas, which is his Motion for Relief. (Doc. 75). 5 Because Mr. Porchas does not contest the reasonableness of the requested fees in this his 6 Motion for Relief, the Court could deny the Motion on that basis alone. However, Mr. 7 Porchas brings his Motion pro se, and so the Court will also construe the Motion as a 8 Motion for Reconsideration and assess whether it merits relief under Federal Rule of Civil 9 Procedure 60 and Local Rule 7.2. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting 10 that courts should liberally interpret pro se filings). 11 There are several reasons Mr. Porchas’ Motion does not warrant reconsideration of 12 its Order holding Mr. Porchas in civil contempt. First, Mr. Porchas’ Motion was filed more 13 than two weeks after he was served with a copy of the Order holding him in contempt. See 14 LRCiv 7.2(g) (stating that motions for reconsideration must be filed no later than fourteen 15 days after the order in question is filed, absent good cause shown). 16 Second, Mr. Porchas has not shown reasonable diligence in contesting the 17 subpoenas. The subpoena’s Certificate of Service shows Mr. Porchas was personally 18 served with the subpoena on July 29, 2020. (Doc. 62-1 at 16). That subpoena contained a 19 copy Federal Rule of Civil Procedure 45(d)(3), which provides the process by which one 20 may modify an unduly burdensome subpoena. (Id. at 22). Mr. Porchas, therefore, has been 21 provided written notice that an attempt to modify a subpoena must be “timely.” See Fed. 22 R. Civ. P. 45(d)(3). As the Court has explained to Mr. Prochas before, because Mr. Porchas 23 has not made a timely motion, he has waived any objection to the subpoenas. Moore v. 24 Garnand, 2020 WL 3574599, at *7 (D. Ariz. July 1, 2020) (“A non-party’s failure to make 25 timely objections to a Rule 45 subpoena deuces tecum generally requires the court to find 26 that any objections have been waived.”). It is doubtful that an objection to the subpoenas 27 on November 4 would have been timely, either. The time for contesting the July subpoenas 28 has passed. 1 When given notice and opportunity to be heard as to why he has failed to comply or contest the subpoenas, Mr. Porchas has generally failed to make any argument or even 3|| appear. (Doc. 69). When he was ordered to respond to the reasonableness of Plaintiffs’ 4|| requested attorney fees, he made no objection to their reasonableness. (Docs. 69 at 3; 75 5 || at 6). As reminder, the Court’s purpose in awarding fees is to compel obedience with the 6 || Court’s orders and subpoenas. See Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 7\| 770, 778 (9th Cir. 1983); Fed. R. Civ. P. 45(a) advisory committee’s note (1991 8 || amendment). Thus far, Mr. Porchas has not shown any willingness to observe the Court’s orders. His Motion will be denied. Moreover, having no objection to the reasonableness □□ of the award on the record, the Court finds that Plaintiff’s request of $3,180.00 is a 11 |} reasonable award and will award the same. 12 Accordingly, 13 IT IS HEREBY ORDERED that Mr. Martin Porchas’ Motion for Relief (Doc. 75) 14]| is denied. 15 IT IS FURTHER ORDERED that Mr. Porchas shall pay Plaintiffs’ attorneys in 16|| the amount of $3,180.00, representing the reasonable costs and fees incurred as a result of 17 || these contempt filings. Pursuant to Fed. R. Civ. 54(b), the Court finds there is no just reason 18 || for delay. The Clerk of Court shall enter judgment against Mr. Porchas reflecting this 19 || contempt fine. 20 IT IS FINALLY ORDERED that Plaintiffs shall effect service of this Order on || Mr. Martin Porchas no later than January 29, 2021, and file proof of service of this Order 22 || no later than February 5, 2021. 23 Dated this 25th day of January, 2021. 24 25 oC. . fo □ 26 norable'Diang4. Huretewa United States District Judge 28 -3-

Document Info

Docket Number: 2:18-cv-03058

Filed Date: 1/25/2021

Precedential Status: Precedential

Modified Date: 6/19/2024