Shalaby v. Bernzomatic ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Andrew W. Shalaby, Case No.: 3:11-cv-0068-AJB 12 Plaintiff, ORDER GRANTING DEFENDANT’S 13 v. MOTION FOR CONTEMPT AND SANCTIONS (Doc. No. 119) 14 Bernzomatic, et al., 15 Defendants. 16 17 Defendants Bernzomatic, et al. move the Court to find Plaintiff Andrew Shalaby in 18 contempt of the Court’s pre-filing order and to award Defendants sanctions. 19 (Doc. No. 119.) In the Court’s pre-filing order, the Court stated, “Andrew Shalaby must 20 seek and obtain leave of this Court, prior to filing any new actions, against any defendant, 21 in any forum, based upon, or related in any way, to injuries he sustained as a result of the 22 accident on April 21, 2006.” (Doc. No. 66 at 8.) 23 Defendants note, however, that Shalaby attempted to have his case added as a related 24 case in an MDL in the Central District of California. (Doc. No. 119-1 at 3.) Shalaby was 25 also seeking to have other cases he represents consolidated into the MDL. (Id.) Defendants 26 argue his “attempted disclosure of Shalaby v. Bernzomatic as a potential tag-along action 27 to the MDL is a new action that is based upon, or at least, related to the injuries Shalaby 28 sustained as a result of the accident he suffered on April 21, 2006. (Id. at 5.) 1 Shalaby responds in an unsurprising fashion by alleging Defendants’ motion 2 “constitutes the crime of witness-tampering. . . .” (Doc. No. 127 at 2.) Shalaby insists 3 Defendants’ filing of the motion warrants sanctions for him and, of course, “termination of 4 the prefiling order for Defendants’ abuse of the order and witness-tampering.” (Id.) 5 In reviewing Shalaby’s response, the only substantive response he makes argues he 6 was unable to seek leave of Court to file new actions as the Court directed the Court Clerk 7 to reject any additional filings. However, the Court still receives any document Shalaby 8 seeks to file with it—but rather than automatically filing any document Shalaby seeks to 9 file, the Court Clerk rather discrepancies it (which prevents its publication on the docket) 10 and allows the District Judge to decide whether it stays off the docket or gets filed. Thus, 11 Shalaby’s argument he was prevented from seeking permission regarding new actions is 12 incorrect, although the Court acknowledges Shalaby might not have known that. However, 13 the Court notes Shalaby made no attempt to seek permission to file any new cases, an odd 14 concession when Shalaby sought more than several reconsideration motions of his pre- 15 filing order and sought leave to oppose the instant motion. 16 Which, predictably, Shalaby once against requests the Court terminate the pre-filing 17 order. He also asks the Court, once again, to issue a protective order preventing Defendants 18 from referring to the order in other actions. (Doc. No. 127 at 7.) However, the Court has 19 already addressed these arguments and declines to re-visit them now. 20 As to Shalaby’s assertion Defendants’ motion constitutes witness tampering, 21 (Doc. No. 127 at 7–8), the Court notes 18 U.S.C. § 1532(b) does not exist, but that 18 22 U.S.C. § 1512 is a criminal statute and as such, the Court has no civil authority to enforce 23 it. The same applies for Cal. Penal Code § 136.1. Accordingly, the Court declines Shalaby’s 24 request to find Defendants have witness-tampered. 25 Most notably however is Shalaby’s failure to respond to the core charge in 26 Defendants’ motion. Shalaby failed to show that he sought this Court’s leave to file his 27 case as a related case in another court’s MDL. Accordingly, the Court agrees with 28 Defendants that he is in contempt of the pre-filing order. See Sephary-Fard v. Select 1 || Portfolio Servicing, Inc., NO. 14-cv-05142-LHK, 2016 WL 4436312, at *1 (N.D. Cal. 2 || Aug. 23, 2016) (granting motion for contempt against plaintiff who violated court’s prior 3 || vexatious litigant order). 4 The Court finds that sanctions at this time is appropriate. Shalaby acted “in bad faith, 5 || vexatiously, wantonly, or for oppressive reasons.” Matsumaru v. Sato, 521 F. Supp. 1013, 6 || 1016 (D. Az. 2007) (finding a court may impose sanctions for these reasons). Courts have 7 inherent power to sanction parties that willfully disobey a court order. See Broemer v. 8 No. CV 01-04340 MMM (RZx), 2002 WL 3644940, at *1 (C.D. Cal. Jan. 9, 2002) 9 ||(citing Chambers vy. NASCO, Inc., 501 U.S. 32, 43 (1991)). Accordingly, the Court 10 || GRANTS Defendants’ request for monetary sanctions against Shalaby for reasonable 11 attorney’s fees and costs expended for bring this motion and defending against Shalaby’s 12 || attempt to enter his case into the proposed MDL in the Central District. Defendants must 13 || file its motion for attorney’s fees and costs by August 30, 2019. Shalaby may oppose the 14 ||motion by September 13, 2019. Defendants’ reply is due by September 20, 2019. A 15 || hearing date will be set by the Court as it sees fit. 16 IT IS SO ORDERED. Dated: August 15, 2019 © 1 ez : 18 Hon. Anthony J.Battaglia 19 United States District Judge 20 21 22 23 24 25 26 27 28