Fidelity National Financial in v. Allen Hyman

FILED
NOT FOR PUBLICATION SEP 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIDELITY NATIONAL FINANCIAL No. 08-56038
INC., a Delaware corporation; FIDELITY
EXPRESS NETWORK INC., a California D.C. No. 2:00-cv-06902-GAF-RZ
corporation,
Plaintiffs - Appellees, MEMORANDUM*
v.
ALLEN HYMAN,
Defendant - Appellant,
and
COLIN H. FRIEDMAN, individually,
Defendant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted September 2, 2010**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN, GOULD and IKUTA, Circuit Judges.
Attorney Allen Hyman appeals the district court’s order granting the request
of Fidelity National Financial, Inc. (“Fidelity”) to hold him liable for contempt
sanctions in the amount of $39,717.50. We have jurisdiction pursuant to 8 U.S.C.
§ 1291. As the facts are known to the parties, we repeat them only as necessary to
explain our decision. Because we conclude that the district court did not abuse its
discretion in imposing sanctions under Rule 37, see Lahiri v. Universal Music &
Video Distrib. Corp., 606 F.3d 1216, 1218 (9th Cir. 2010), we affirm.
Although our law on third-party contempt does not give an independent
basis for imposing contempt sanctions on an attorney for aiding and abetting a
client’s contempt, see Westlake N. Prop. Owners Ass’n v. City of Thousand Oaks,
915 F.2d 1301, 1304 (9th Cir. 1990), the district court did not abuse its discretion
in imposing sanctions under Rule 37. Where a party “fails to obey an order to
provide or permit discovery,” the district court may find the party in contempt and
“must order the disobedient party, the attorney advising that party, or both to pay
the reasonable expenses, including attorney’s fees, caused by the failure, unless the
failure was substantially justified or other circumstances make an award of
expenses unjust.” Fed. R. Civ. P. 37(b)(2)(A), (C). The district court’s application
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of Rule 37 was not an abuse of discretion, as it was logical, plausible, and
supported by inferences that it properly drew from the record. See United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc). There was sufficient
evidence supporting its conclusion that Hyman’s efforts to obtain the documents
were “half-hearted and ineffectual,” and Hyman did not meet his burden of
showing that substantial justification or other circumstances made the award
unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1172 (9th Cir. 1994). Nor were
the district court’s findings clearly erroneous.
Also, the record indicates that Hyman had adequate notice and opportunity
to be heard on his potential liability under Rule 37. See Lasar v. Ford Motor Co.,
399 F.3d 1101, 1109–10 (9th Cir. 2005). The district court told Hyman on two
occasions that he could be liable under Rule 37, Fidelity’s original motion
requested attorney’s fees under Rule 37, and Hyman did not file a motion for
reconsideration when the district court afforded him the opportunity to do so.
AFFIRMED.
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