Weiss v. Espresso Roma Corporation ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HAZEL WEISS, Case No. 19-cv-00112-HSG 8 Plaintiff, ORDER GRANTING MOTION FOR CIVIL CONTEMPT 9 v. Re: Dkt. No. 34 10 ESPRESSO ROMA CORPORATION, 11 Defendant. 12 13 Pending before the Court is Plaintiff Hazel Weiss’ (“Plaintiff”) motion for an order to 14 show cause why the Court should not hold Defendant Espresso Roma Corporation (“Defendant”) 15 in civil contempt for failing to comply with the Court’s February 3, 2020 Order enforcing a 16 settlement agreement and its injunctive relief and monetary relief terms. Dkt. No. 34 (“Motion”). 17 Defendant has not responded or objected to the Motion. For the reasons detailed below, the Court 18 GRANTS the Motion.1 19 I. BACKGROUND 20 Plaintiff filed her Complaint on January 9, 2019, alleging violations of Title III of the 21 Americans with Disabilities Act (“ADA”), 42 U.S.C. §12182 et seq. and additional state statutes 22 related to alleged discrimination she encountered while visiting a Defendant-owned Subway 23 Restaurant in Berkeley, California with her service dog. Dkt. No. 1. 24 In June 2019, the parties negotiated and agreed to a settlement agreement (“Settlement 25 Agreement”) resolving the pending action. Dkt. No. 13. As part of the Settlement Agreement, 26 Defendant agreed to: (1) adopt a service dog policy that complies with the provisions of the ADA; 27 1 (2) train its public-facing staff on the service dog policy; and (3) pay a sum of $12,500.00 within 2 thirty days. Id. The parties executed the Settlement Agreement on July 4, 2019. Dkt. No. 16. 3 On June 28, 2019, the parties requested a 45-day extension to finalize the Settlement 4 Agreement and file a stipulation of dismissal. Dkt. No. 13. On August 19, 2019, Plaintiff filed a 5 joint status update informing the Court that Defendant had not complied with the terms of the 6 Settlement Agreement and requested a sixty day period to file the stipulated dismissal. Dkt. No. 7 16. On August 20, 2019, the Court issued a Conditional Order of Dismissal, granting the sixty day 8 period for reporting non-compliance with the Settlement Agreement. Dkt. No. 17. 9 On October 11, 2019, Plaintiff stated that the Settlement Agreement was not “delivered by 10 Defendant,” that “Defendant’s counsel has not responded substantively to communications 11 inquiring about the status of said consideration,” and requested that the case be restored to 12 calendar. Dkt. No. 18. On October 22, 2019, the Court directed the Clerk to reopen the case and 13 vacate the conditional dismissal. Dkt. No. 20. On November 1, 2019, Defense counsel failed to 14 appear for a scheduled telephonic conference, and the Court subsequently issued an Order to Show 15 Cause regarding defense counsel’s failure to appear. Dkt. No. 21. Defense counsel filed a 16 response to the Order to Show Cause on November 5, 2019, and the Court set a further telephonic 17 conference for November 8, 2019. Dkt. No. 25. At that conference, the parties stipulated to an 18 entry of judgment in favor of Plaintiff. Id. On November 22, Plaintiff filed another status report 19 detailing the ongoing non-responsiveness of defense counsel and the lack of cooperation in 20 complying with the Court’s order. Dkt. No. 27. On December 2, 2019, the Court granted 21 Plaintiff’s request to file a motion to enforce the Settlement Agreement, which the Plaintiff filed 22 on December 4, 2019. Dkt. Nos. 28, 29. 23 On January 13, 2020, Magistrate Judge Corley issued a report and recommendation that 24 the Court grant Plaintiff’s motion to enforce the Settlement Agreement, and ordered Defendant to 25 comply with its terms. Dkt. No. 32. The Court adopted Magistrate Judge Corley’s 26 recommendations on February 3, 2020. Dkt. No. 33. Plaintiff contacted Defense counsel on 27 February 10, 2020 to request compliance with that order within twenty-one days, to which counsel 1 in any form, and has yet to perform any of its obligations under the Agreement as ordered by the 2 Court. Id. at 4. 3 II. LEGAL STANDARD 4 Civil contempt “consists of a party’s disobedience to a specific and definite court order by 5 failure to take all reasonable steps within the party’s power to comply.” Reno Air Racing Ass’n., 6 Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). “The standard for finding a party in civil 7 contempt is well settled: The moving party has the burden of showing by clear and convincing 8 evidence that the contemnors violated a specific and definite order of the court.” In re Bennett, 9 298 F.3d 1059, 1069 (9th Cir. 2002) (internal quotation and citation omitted). Once the moving 10 party does so, the “burden then shifts to the contemnors to demonstrate why they were unable to 11 comply.” Id. 12 “Plaintiffs are entitled to recover attorney’s fees and costs incurred in bringing and 13 prosecuting . . . contempt proceedings.” Inst. of Cetacean Research v. Sea Shepherd Conservation 14 Soc’y, 774 F.3d 935, 958 (9th Cir. 2014). The “cost of bringing the violating to the attention of 15 the court is part of the damages suffered by the prevailing party and those costs would reduce any 16 benefits gained by the prevailing party from the court’s violated order.” Perry v. O’Donnell, 759 17 F.2d 702, 705 (9th Cir. 1985). 18 III. DISCUSSION 19 Plaintiff has met its burden of showing by clear and convincing evidence that Defendant 20 violated the Court’s February 3, 2020 Order. The Court’s Order, adopting the findings and 21 recommendations of Magistrate Judge Corley, was clear and unambiguous: Defendant was to 22 comply with the terms of the executed Settlement Agreement by: (1) adopting a service dog policy 23 that complies with the provisions of the ADA; (2) training its public-facing staff regarding the 24 policy; and (3) paying Plaintiff the settlement amount of $12,500. Dkt. No. 33. Yet Defendant 25 has failed to comply with the Settlement Agreement’s terms and has made no effort to 26 communicate with or respond to Plaintiff’s counsel. The Court finds that Plaintiff has sufficiently 27 demonstrated cause for holding the Defendant in civil contempt. Reno Air, 452 F.3d at 1130. 1 of showing why it was unable to comply with the Court’s Order. Id. 2 || IV. CONCLUSION 3 Accordingly, Plaintiff's Motion is GRANTED. The Court ORDERS Defendant and its 4 || counsel to appear telephonically before this Court on Thursday, September 17, 2020 at 2:00 p.m. 5 || to show cause why the Court should not hold Defendant in contempt and sanction it for the failure 6 || to comply with the Court’s February 3, 2020 Order and the Settlement Agreement. All counsel 7 shall use the following dial-in information to access the call: Dial-In: 888-808-6929/Passcode: 8 6064255. For call clarity, parties shall NOT use speaker phone or earpieces for these calls, and 9 || where at all possible, parties shall use landlines. The parties are further advised to ensure that the 10 || Court can hear and understand them clearly before speaking at length. 11 IT IS SO ORDERED. 12 || Dated: 9/4/2020 4 HAYWOOD S. GILLIAM, JR. United States District Judge 2 16 18 19 20 21 22 23 24 25 26 27 28