Rodriguez v. Social Security Administration ( 2024 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 CANDY M. R., Case No. 2:24-cv-00927-NJK 8 Plaintiff(s), Order 9 v. 10 MARTIN O’MALLEY, 11 Defendant(s). 12 Pending before the Court is an order to show cause why dismissal and other sanctions 13 should not be imposed on Plaintiff and Plaintiff’s counsel. Docket No. 20. The Court has received 14 three responses. Docket Nos. 22, 24, 25. 15 I. BACKGROUND 16 The record reflects a number of shortcomings by counsel. First, on June 28, 2024, the 17 Court reviewed Plaintiff’s amended complaint and determined that it failed the screening process 18 that applies to those seeking to proceed in forma pauperis. See Docket No. 13 at 2 & n.1. The 19 Court ordered Plaintiff to file a second amended complaint by July 12, 2024. See id. at 2. Plaintiff 20 violated that order. 21 Second, Stephen M. Sloan has been presented as the lead counsel for Plaintiff since the 22 inception of this case. See, e.g., Docket No. 1-1 at 1. Attorney Sloan is not identified as a Nevada- 23 barred attorney and did not file an application to appear pro hac vice. See, e.g., id. On June 3, 24 2024, the Court ordered Attorney Sloan to file an application to appear pro hac vice by June 17, 25 2024. Docket No. 8. No such application was filed.1 On June 20, 2024, the Court instructed the 26 Clerk’s Office to remove Attorney Sloan as counsel of record given the failure to file an application 27 1 In the interim, however, Attorney Sloan was included on the caption and signed a status 28 report. Docket No. 9. 1 to appear pro hac vice. Docket No. 11. On June 27, 2024, despite being removed from the case, 2 Attorney Sloan was included on the caption and signed an amended complaint. Docket No. 12. 3 On June 28, 2024, the Court set a show cause hearing for July 15, 2024, as to why Attorney Sloan 4 was neither complying with the pro hac vice rules nor ceasing to make filings in this case. Docket 5 No. 14. No one appeared at the hearing on behalf of Plaintiff. Docket No. 17. 6 Hence, Plaintiff’s attorneys have violated several orders, as well as the local rules 7 governing appearances by out-of-state attorneys. 8 II. STANDARDS 9 “Orders are not suggestions or recommendations, they are directives with which 10 compliance is mandatory.” Gfeller v. Doyne Med. Clinic, Inc., Case No. 2:14-cv-01940-JCM- 11 VCF, 2015 WL 5210392, at *8 (D. Nev. Sept. 3, 2015) (citing Chapman v. Pacific Tel. & Tel. Co., 12 613 F.2d 193, 197 (9th Cir. 1979) and Weddell v. Stewart, 261 P.3d 1080, 1085 & n.9 (Nev. 2011)). 13 There are several sources of legal authority by which federal courts enforce their orders. Most 14 pertinent here, Rule 16(f) of the Federal Rules of Civil Procedure requires compliance with any 15 “scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(c).2 Rule 16(f) is “broadly remedial 16 and its purpose is to encourage forceful judicial management.” Sherman v. United States, 801 17 F.2d 1133, 1135 (9th Cir. 1986) (per curiam). Rule 16(f) applies regardless of whether the non- 18 compliance with the order was intentional. See, e.g., Lucas Auto. Eng’g, Inc. v. 19 Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001). Similarly, “[i]t is firmly 20 established that sanctions may be imposed for a party’s unexcused failure to comply with a Rule 21 16 order, even if that failure was not made in bad faith.” Hologram USA, Inc. v. Pulse Evolution 22 Corporation, Case No. 2:14-cv-0772-GMN-NJK, 2016 WL 2757377, at *2 (D. Nev. May 11, 23 2016) (collecting cases). 24 When a court determines that Rule 16(f) has been triggered, it has broad discretion in 25 fashioning an appropriate sanction. See, e.g., Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 26 1397 (9th Cir. 1993); see also Local Rule IA 11-8 (the Court may impose “any and all appropriate 27 2 A minute order constitutes an “order” for purposes of Rule 16(f). E.g., Gfeller, 2015 WL 28 5210392, at *8. 1 sanctions on an attorney” who violates any order). Violations of orders are “neither technical nor 2 trivial,” Martin Family Trust v. Heco/Nostalgia Enterps. Co., 186 F.R.D. 601, 603 (E.D. Cal. 3 1999), and can have severe ramifications. Rule 16(f) itself provides that courts may issue “any 4 just orders,” including those authorized by Rule 37(b)(2)(A)(ii)-(vii), which include the initiation 5 of contempt proceedings and entry of case-dispositive sanctions. See Fed. R. Civ. P. 16(f)(1); see 6 also Malone v. U.S. Postal Serv., 833 F.2d 128, 130-33 (9th Cir. 1987) (affirming dismissal 7 sanction). While not expressly enumerated, the imposition of court fines is within the scope of the 8 “just orders” permitted by Rule 16(f). See Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-96 9 (8th Cir. 2001); see also, e.g., Garcia v. GEICO Cas. Co., Case No. 2:13-cv-731-JCM-NJK, 2014 10 WL 7474773, at *3-4 (D. Nev. Jan. 6, 2014) (imposing court fines of $5,000 and $2,500 for 11 attorneys failing to appear at hearings). In determining the appropriate sanction, a primary 12 objective is to deter similar misconduct. See, e.g., Martin Family Trust, 186 F.R.D. at 604. 13 III. ANALYSIS 14 As noted above, this case involves a cascading series of violations, including with respect 15 to orders (and the local rules) to file a pro hac vice application for Attorney Sloan and the order to 16 file a second amended complaint. The case hit rock bottom when Attorney Sloan and Attorney 17 Hal Taylor failed to appear for a show cause hearing set to address the pro hac vice violations. 18 In the face of these violations, the responses to the order to show cause are not compelling. 19 For his part, Attorney Taylor takes blame for a series of missteps in which he failed to act in 20 response to the subject orders, though he does not directly explain what caused those failures.3 For 21 his part, the Court recognizes that Attorney Sloan was relying in part on Attorney Taylor to stay 22 abreast of the proceedings. Of course, Attorney Sloan also had his own duty to keep informed as 23 to the case proceedings. Critically, Attorney Sloan was expressly notified of the show cause 24 hearing by opposing counsel. See Docket No. 24 at 4; see also Docket No. 25. Rather than engage 25 in any kind of inquiry into the setting of that hearing, the nature of that hearing, or why Attorney 26 3 As examples, Attorney Taylor indicates that he “failed” to seek relief as to the pro hac 27 vice deadline, Docket No. 22 at 3, and that he “missed” the order setting the show cause hearing, id. at 4. Why that is so is left a mystery, though the response indicates that Attorney Taylor “could 28 argue that his busy schedule was at least a part of the reason for these errors.” Id. at 4 n.1. 1 Sloan had been unaware of that hearing,4 Attorney Sloan simply consented to opposing counsel 2 appearing telephonically and then put his head back into the sand. See Docket No. 24 at 4. In 3 short, neither Attorney Taylor nor Attorney Sloan has presented any reasonable justification for 4 their violations of the Court’s orders. 5 In light of the circumstances, Attorney Taylor is sanctioned in a Court fine of $1,000 and 6 Attorney Sloan is sanctioned in a Court fine of $250. These sanctions are personal to Attorney 7 Taylor and Attorney Sloan. Payment must be made by September 27, 2024, as a court fine to 8 “Clerk, United States District Court.” A notice of compliance must also be filed on the docket by 9 that date. 10 These sanctions do not fully reflect the impact of the identified violations on the sanctity 11 of the Court’s docket. The Court has been lenient in setting the sanction amount, however, based 12 on the assurance that steps have been taken to avoid any similar problems in the future. Docket 13 No. 24 at 2. To that end, both Attorney Taylor and Attorney Sloan are cautioned that they must 14 strictly comply with all orders moving forward. Counsel should anticipate that similar failings in 15 this case, or in any other case, will result in more severe repercussions than those imposed herein. 16 See, e.g., Garcia, 2014 WL 7474773, at *3-4. 17 III. CONCLUSION 18 Accordingly, the Court imposes sanctions on counsel as stated above. The order to show 19 cause is otherwise discharged. 20 With respect to the remaining housekeeping matters, (1) Attorney Sloan must file an 21 application to proceed pro hac vice by September 6, 2024, and (2) the Court finds that the proposed 22 second amended complaint (Docket No. 24 at 18-22) suffices for screening purposes, see, e.g., 23 Graves v. Colvin, 2015 WL 357121, at *2 (D. Nev. Jan. 26, 2015). In addition to providing notice 24 through CMECF to Attorney Taylor, the Clerk’s Office is INSTRUCTED to both mail and email 25 a copy of this order to Attorney Sloan as follows: 26 27 4 These would be expected inquiries in any case, but the Court is at a loss as to why alarm bells did not start ringing for Attorney Sloan with respect to the setting of a hearing in this social 28 security appeal, particularly given that hearings in such proceedings are rare. 1} Stephen M. Sloan Osterhout Berger Daley, LLC 2|| 4256 N. Ravenswood Ave, Suite 104 Chicago, IL 60613 Email: ssloan@obd.law° 4 IT IS SO ORDERED. 5 Dated: August 27, 2024 6 4” A — a Nancy J. Koppe 7 United States Magistrate Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27), ——__________ > It appears this is Attorney Sloan’s current email address, see Docket No. 24 at 1, though 28] he provided a different email address on earlier captions, see, Docket No. 1-1 at 1.