Acevedo v. Russell Cellular, Inc. ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCO ACEVEDO, Case No. 1:20-cv-01440-JLT-SAB 12 Plaintiff, ORDER DISCHARGING ALL OUTSTANDING ORDERS TO SHOW 13 v. CAUSE AND ANY FURTHER OBLIGATION TO PAY SANCTIONS OR 14 RUSSELL CELLULAR, INC., FILE DECLARATIONS RE COMPLIANCE 15 Defendant. (ECF Nos. 50, 56, 57, 59) 16 17 I. 18 BACKGROUND 19 Plaintiff Marco Acevedo initiated this action in state court on September 8, 2020. (ECF 20 No. 1-3.) On October 8, 2020, Defendant Russell Cellular, Inc. removed the action to this Court. 21 (ECF No. 1.) On May 19, 2021, the Court stayed this matter to allow the parties to participate in 22 arbitration. (ECF No. 15.) Since then, the parties, though primarily Plaintiff through counsel 23 Michael Freiman (“Counsel” or “Mr. Freiman”), failed to demonstrate diligence in moving this 24 case forward through arbitration, and failed to timely or appropriately submit status reports or 25 otherwise respond to the Court’s orders. The Court issued numerous orders to show cause, and 26 imposed monetary sanctions on Plaintiff and Counsel. (See ECF Nos. 20, 21, 23, 27, 30, 34, 35, 27 36, 38, 40, 43, 46.) On June 9, 2022, the Court ordered Mr. Freiman to pay the Clerk of the Court a total 1 sanctions amount $1,400.00, to be paid within thirty (30) days of entry of the order; to report the 2 sanctions to the State Bar of California within thirty (30) days of entry of the order; and to file a 3 declaration attesting to reporting to the State Bar of California within forty (40) days of entry of 4 the order. (ECF No. 50.) On the same date, the Court also issued findings and recommendations 5 that this action be dismissed for failure to prosecute. (ECF No. 51.) 6 On July 12, 2022, because Mr. Freiman had not paid the sanctions amount by the end of 7 the thirty (30) day deadline, the Court issued an order to show cause on or before July 18, 2022, 8 as to why further sanctions should not be imposed. (ECF No. 55.) Mr. Freiman did not respond 9 to the July 12, 2022 order, and additionally, the forty (40) day deadline to file a declaration 10 regarding reporting to the State Bar of California expired and Mr. Freiman filed no such 11 declaration. Therefore, on July 20, 2022, the Court issued an order imposing further daily 12 sanctions. (ECF No. 56.) Therein, the Court noted it was “concerned that counsel has not filed 13 anything in this action since June 3, 2022, when Mr. Freiman declared he was suffering from 14 COVID-19.” (Id. at 2.) The Court also noted that subsequently this case was closed. (Id.) The 15 Court decided to impose further sanctions, but did not have the sanctions begin accruing until the 16 close of business on July 20, 2022, despite Mr. Freiman not submitting anything between June 9, 17 2022, and July 20, 2022. (Id.) Specifically, the Court ordered that Mr. Freiman pay the previous 18 sanctions amount of $1,400.00, plus an additional $50 sanction for each day the Court is open 19 and that the total sanction amount had not been paid, and a declaration to the State of California 20 has not been filed. (Id. at 3.) The Court additionally added a footnote to make the amount of 21 sanctions due on a given date clear, stating: “In other words, if Mr. Freiman pays the original 22 sanction amount of $1,400 and files the declaration before the close of business on July 20, 2022, 23 whether or not in response to this order, that will be the final amount due. If paid on July 21, 24 2022, before close of business, he shall pay $1,450. If he pays on July 22, 2022, before close of 25 business, he shall pay $1,500, and so on.” (Id. at 3 n.1.) 26 On March 15, 2023, Mr. Frieman paid the Court $1,400.00 in sanctions. No other filings 27 were made. Because the total amount due under the $50 per day additional sanction, nor a 1 reporting to the State Bar of California, were provided, on March 16, 2023, the Court issued 2 another order to show cause why further sanctions should not be imposed for the failure to 3 comply with the Court’s orders, why Mr. Freiman should not be held in contempt, and why Mr. 4 Freiman should not be disbarred from practicing in the Eastern District of California. (ECF No. 5 57.) 6 On March 17, 2023, Mr. Freiman paid an additional $8,100.00 in sanctions. On March 7 23, 2023, Mr. Freiman filed a request to seal a declaration and documents relating to his response 8 to the Court’s orders to show cause. (ECF No. 58.) On March 23, 2023, the Court granted the 9 request to seal. (ECF No. 59.) On March 24, 2023, the documents were filed with the Court 10 under seal. (ECF No. 60.) 11 II. 12 LEGAL STANDARD 13 The Federal Rules of Civil Procedure provides that the underlying purpose of the rules is to 14 “secure the just, speedy and inexpensive determination” of an action. Fed. R. Civ. P. 1. To 15 effectuate this purpose, the rules provide for sanctions against parties that fail to comply with court 16 orders or that unnecessarily multiply the proceedings. See, e.g., Fed. R. Civ. P. 16(f); Fed. R. Civ. 17 P. 37(b). Rule 16(f) authorizes the Court to issue any just order if a party or attorney fails to obey 18 a scheduling or other pretrial order. 19 The Court also possesses inherent authority to impose sanctions to manage its own affairs 20 so as to achieve the orderly and expeditious disposition of cases. Chambers v. NASCO, Inc., 501 21 U.S. 32, 43 (1991). The Court’s inherent power is that which is necessary to the exercise of all 22 others, including to protect the due and orderly administration of justice and maintain the authority 23 and dignity of the Court. Roadway Exp., Inc. v. Piper, 447 U.S. 752, 764 (1980). In order to 24 coerce a party to comply with the Court’s orders, the Court may issue sanctions for every day that 25 party fails to respond to the Court’s orders to show cause. See Lasar v. Ford Motor Co., 399 F.3d 26 1101, 1110 (9th Cir. 2005) (discussing court’s authority to impose civil sanctions “intended to be 27 remedial by coercing the defendant to do what he had refused to do.”). 1 counsel or of a party to comply with these Rules or with any order of the Court may be grounds 2 for imposition by the Court of any and all sanctions authorized by statute or Rule or within the 3 inherent power of the Court.” L.R. 110. Local Rule 180(e) provides: “Every member of the Bar 4 of this Court, and any attorney permitted to practice in this Court under (b), shall become 5 familiar with and comply with the standards of professional conduct required of members of the 6 State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of 7 the State Bar of California, and court decisions applicable thereto, which are hereby adopted as 8 standards of professional conduct in this Court.” L.R. 180(e). 9 Further, “[i]n the event any attorney subject to these Rules engages in conduct that may 10 warrant discipline or other sanctions, any Judge or Magistrate Judge may initiate proceedings for 11 contempt under 18 U.S.C. § 401 or Fed. R. Crim. P. 42, or may, after reasonable notice and 12 opportunity to show cause to the contrary, take any other appropriate disciplinary action against 13 the attorney.” L.R. 184(a). “In addition to or in lieu of the foregoing, the Judge or Magistrate 14 Judge may refer the matter to the disciplinary body of any Court before which the attorney has 15 been admitted to practice.” Id. 16 “Courts have the ability to address the full range of litigation abuses through their 17 inherent powers.” F.J. Hanshaw Enterprises, Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 18 1136 (9th Cir. 2001). “While it is preferable that courts utilize the range of federal rules and 19 statutes dealing with misconduct and abuse of the judicial system, courts may rely upon their 20 inherent powers to sanction bad faith conduct even where such statutes and rules are in place.” 21 Id. at 1136–37. 22 III. 23 DISCUSSION 24 Based on the Court’s review of the docket, the Court is satisfied that Mr. Freiman has 25 now complied with the Court’s orders to pay monetary sanctions. Further, based on review of 26 the declaration and documents submitted under seal, the Court considers Mr. Freiman, while not 27 in strict compliance, has sufficiently complied with the Court’s requirements related to reporting 1 | show cause, and all outstanding obligations to pay monetary sanctions, or any outstanding 2 | obligation to report to the State Bar of California, imposed through orders issued in this action. 3 IV. 4 ORDER 5 Accordingly, IT IS HEREBY ORDERED that all outstanding orders to show cause, and 6 | any obligations to pay monetary sanctions or report to the State Bar of California, as related to 7 | orders issued in this action as to Michael Freiman (ECF Nos. 50, 55, 56, 57), are 8 | DISCHARGED. 9 10 IT IS SO ORDERED. DAM Le 11 | Dated: _March 24, 2023 _ Of UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28