Guijarro v. Sheraton Operating Corporation ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE GUIJARRO, individually, and on Case No.: 19cv2237-L-LL behalf of all other similarly situated 12 current and former employees of ORDER IMPOSING SANCTIONS AS 13 SHERATON OPERATING A RESULT OF PLAINTIFF JORGE CORPORATION, GUIJARRO’S FAILURE TO 14 APPEAR AT THE EARLY Plaintiff, 15 NEUTRAL EVALUATION v. CONFERENCE; 16 SHERATON OPERATING 17 ORDER SETTING HEARING CORPORATION, corporation; and DOES 18 1 through 100, inclusive, 19 Defendants. 20 21 On January 8, 2020, the Court issued an Order to Show Cause as to why sanctions 22 should not be imposed on Plaintiff for Plaintiff Jorge Guijarro’s failure to appear in-person 23 at the Early Neutral Evaluation (“ENE”). ECF No. 9. After considering the filings 24 submitted by the parties [ECF Nos. 11, 12], the Court concludes that Plaintiff should be 25 sanctioned in the amount, and for the reasons, set forth below. 26 / / / 27 / / / 28 / / / 1 RELEVANT BACKGROUND 2 On November 26, 2019, the Court issued a Notice and Order for an Early Neutral 3 Evaluation to be held on January 7, 2020. ECF No. 5. The ENE Notice required that all 4 parties and the principal attorneys responsible for the litigation attend the ENE. 5 Specifically, the ENE Notice stated: 6 Personal Appearance of Parties Required: All parties, adjusters for insured parties, and other representatives of a party 7 having full and complete authority to enter into a binding 8 settlement, and the principal attorneys responsible for the litigation, must be present in person and legally and factually 9 prepared to discuss settlement of the case. Counsel appearing 10 without their clients (whether or not counsel has been given settlement authority) will be cause for immediate imposition of 11 sanctions and may also result in the immediate termination of the 12 conference. 13 Id. at 2. 14 On January 7, 2020, the Court attempted to convene an ENE as scheduled. 15 ECF No. 8. Plaintiff, Mr. Guijarro, failed to appear. Id. Plaintiff’s counsel, Mr. Douglas 16 Perlman, represented to the Court on January 7, 2020 that he had tried to reach his client 17 to inform him to appear at the ENE, but was unsuccessful. For these reasons, the Court 18 issued an Order to Show Cause (“OSC”) that ordered Plaintiff to file a declaration 19 regarding his failure to appear and why Plaintiff should not be sanctioned. ECF No. 9. 20 On January 14, 2020, Plaintiff’s counsel submitted a declaration in response to the 21 Court’s OSC. ECF No. 11. On January 16, 2020, Defendant’s counsel filed a response. 22 ECF No. 12. 23 ANALYSIS 24 I. Mr. Guijarro’s Failure to Appear and Failure to Obey a Pretrial Order 25 “The authority of a federal court to order attendance of attorneys, [and] parties . . . 26 at settlement conferences and to impose sanctions for disregard of the court’s orders is so 27 well established as to be beyond doubt.” Chavarria v. Mgmt. & Training Corp., 28 No. 16cv0617 H(RBB), 2016 U.S. Dist. LEXIS 196983, at *12 (S.D. Cal. Aug. 25, 2016) 1 (citation omitted). Federal Rule of Civil Procedure 16(f) provides that the Court may 2 sanction a party or its attorney if the party “fails to appear at a scheduling or other pretrial 3 conference . . . or fails to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 4 16(f)(1)(A) and (C). Similarly, Civil Local Rule 16.1(c)(1)(c) provides that “[s]anctions 5 may be appropriate for an unexcused failure to attend [an ENE conference].” CivLR 6 16.1(c)(1)(c). 7 Here, Plaintiff Mr. Guijarro failed to comply with two Court orders. First, he failed 8 to appear at the ENE. ECF No 8. Second, Mr. Guijarro failed to file a declaration regarding 9 his failure to appear at the ENE pursuant to the Court’s January 8, 2020 Order. ECF No. 9 10 at 2. Instead, his lawyer, Mr. Perlman, filed a declaration on his behalf, which sets forth his 11 unsuccessful attempts to contact Mr. Guijarro prior to the ENE. ECF No. 11. Mr. Perlman’s 12 declaration further states that after the ENE, a member of his staff was successful in 13 contacting Mr. Guijarro, and that Mr. Guijarro “has expressed interest in this litigation.” 14 Id. ¶ 5. However, Mr. Perlman offers no explanation as to why Mr. Guijarro’s declaration 15 is absent. See id. 16 Plaintiff’s counsel’s explanation is not enough to persuade the Court that sanctions 17 are not justified. Even taking into account Mr. Perlman’s explanation that this failure was 18 unintentional, the Court “need not find bad faith in order to award sanctions pursuant to 19 Rule 16(f).” Chavarria, 2016 U.S. Dist. LEXIS 196983, at *14 (citations omitted). “Rather, 20 the Court may impose sanctions under Rule 16(f) for ‘unintentional or negligent 21 noncompliance with the court’s pretrial orders.” Id.; see also Lucas Auto. Eng’g, Inc. v. 22 Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001) (finding the district court 23 did not err in imposing sanctions for unintentional failure to attend mediation session). 24 The Court is mindful of both (1) the costs that Defendant incurred in having its 25 counsel and party representatives appear in-person at the ENE and (2) Plaintiff’s failure to 26 appear at the ENE, thereby wasting time the Court could have used to address other matters 27 on its docket. 28 / / / 1 || II. Appropriate Sanction 2 Having concluded that sanctions are warranted, the Court next turns to the 3 || appropriate amount. Defendant’s counsel, Ms. Barbara J. Miller, submitted a declaration 4 || asserting she incurred legal fees and costs in the amount of $739.13 in connection with 5 || attending the ENE. See ECF No. 12. The Court finds it appropriate to ORDER Plaintiff to 6 ||reimburse Defendant in the sum of $739.13. Payment is to be made on or before 7 || February 24, 2020. 8 Order to Show Cause Hearing 9 The Court additionally ORDERS Mr. Guijarro and his counsel to appear at an Order 10 || to Show Cause hearing on February 4, 2020 at 9:30 a.m. in Courtroom 2B located at 221 11 || West Broadway, San Diego, California. Defendant is not required to appear at the Order to 12 ||Show Cause hearing but may appear if it so chooses. 13 The Court further ORDERS Mr. Guiyarro to file on the docket a declaration 14 regarding his failure to appear at the ENE no more than five pages in length on or before 15 || January 30, 2020. 16 IT IS SO ORDERED. 17 ||Dated: January 23, 2020 NO 18 DEF 19 Honorable Linda Lopez 50 United States Magistrate Judge 21 22 23 24 25 26 27 28