Know the Local Federal Rules, or Else

In the spirit of the Thanksgiving holiday, this year I give thanks that I was not on the receiving end of the orders discussed below. It is a fact of life in the legal world that some judges enforce rules strictly whereas others may not enforce rules at all. Knowing how a particular judge will enforce rules may often have a substantive impact upon a case.

Magistrate Judge Nancy Koppe joined the bench on January 1, 2013. I have not yet litigated a case before her. I have now read more than a handful of her unpublished orders and some have already been discussed on this blog. In the grand scheme of strict v. lax rule enforcement, these orders seem to suggest MJ Koppe may be stricter. It is something you as a practicing attorney should know because, as I mentioned, sometimes the willingness of a judge to enforce rules makes a substantive difference in a case.

The three orders reproduced below are examples of the orders that gave me this impression. The purpose of offering them is so that we may collectively avoid the errors (and pain) of others. As an editorial note, in fairness to the court and counsel involved, these orders are reproduced verbatim sans footnotes.

Exhibit A: Cabrera v. New Albertson’s, Inc., 2013 U.S. Dist. LEXIS 101497 (D. Nev. July 19, 2013) (no West cite available).

ORDER IMPOSING SANCTIONS
Pending before the Court is an order to show cause why Plaintiff and his counsel (Adam Kutner and Victor Cardoza) should not be sanctioned for their failure to comply with four Court orders. See Docket No. 23; see also Docket No. 20 at 2 (prior notice to Plaintiff and his counsel that the Court was considering sanctions for failure to comply with a Court order). The Court held a hearing on that matter on July 17, 2013, at which time it discharged the order to show cause as it related to Plaintiff himself. See Docket No. 26. With respect to sanctions against Mr. Kutner and Mr. Cardoza, the Court hereby rules as follows.

Attorneys are required to follow Court orders. Rule 16(f) requires counsel to comply with pretrial orders and provides that the Court may order any “just” sanctions, including those outlined in Rule 37(b)(2)(A)(ii)-(vii), for non-compliance. Whether the party and/or its counsel disobeyed the court order intentionally is impertinent; sanctions may be imposed when the parties and their counsel disobey a court order. See Lucas Auto. Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001). Rule 16(f) “was designed not only to insure expeditious and sound management of the preparation of cases for trial but to deter conduct that unnecessarily consumes ‘the Court’s time and resources that could have been more productively utilized by litigants willing to follow the Court’s procedures.'” Martin Family Trust v. NECO/Nostalgia Enters. Co., 186 F.R.D. 601, 603 (E.D. Cal. 1999) (quoting Mulkey v. Meridian Oil, Inc., 143 F.R.D. 257, 262 (W.D. Okla. 1992)). Indeed, the rule also makes clear that “concerns about burdens on the court are to receive no less attention than concerns about burdens on opposing parties.” Matter of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984) (en banc).

Plaintiff’s counsel failed to comply with at least four Court orders. See Docket No. 23 (identifying Docket Nos. 14, 18-20). These orders include an order compelling discovery, see Docket No. 14, and an order requiring Plaintiff to appear at the hearing held on July 10, 2013, Docket No. 20. At the hearing held on July 10, 2013, Mr. Cardoza candidly admitted that there is “no justifiable reason” for failing to comply with the Court’s orders. 7/10/13 Hearing Recording at 3:14 p.m. The gist of Mr. Cardoza’s explanation for the failure to comply is that he relies on his staff to inform him of Court orders and that they did not do so properly with respect to the orders identified above. See, e.g., id. at 3:17-3:18 p.m.; 7/17/13 Hearing Recording at 3:30-3:31 p.m. Mr. Cardoza also suggested that he is generally unfamiliar with practice in Federal Court, as “99%” of his cases are litigated in state court. See 7/17/13 Hearing Recording at 3:34 p.m. For his part, Mr. Kutner merely indicated that he relies on Mr. Cardoza to handle this matter and did not “personally” receive any emails regarding the orders issued by the Court. Id. at 3:31 p.m.

The Court agrees with Mr. Cardoza’s assessment of the situation: there is no justifiable reason for the failure to comply with the Court’s orders. In particular, attorneys are ultimately responsible for maintaining their CM/ECF accounts and for reviewing and responding to Court orders. See Trustees of the Operating Eng’rs Pension Trust v. Maui One Excavating Inc., 2013 U.S. Dist. Lexis 65748, at *7-9 (D. Nev. May 7, 2013); see also Local Ad Link, Inc. v. Adzzoo, LLC, 2012 U.S. Dist. Lexis 79130, at *8 (D. Nev. Apr. 16, 2012). Notice of the relevant orders here were sent to TEN employees of Mr. Kutner’s law firm, as well as to Mr. Cardoza’s personal email account. See, e.g., Docket No. 20 Notice of Electronic Filing (attached hereto). With respect to the latest disobeyed order (Docket No. 20), it is clear that Mr. Cardoza’s staff had notice of the hearing and input it on his calendar. See, e.g., 7/17/13 Hearing Recording at 3:30-3:31 p.m. It is also clear that Mr. Cardoza personally had notice of the hearing (and the requirement that Plaintiff appear) at least 24 hours prior to the hearing. See id. at 3:29-3:30 p.m., 3:36-3:37 p.m. Despite the Court’s warning that failure of Plaintiff to appear “may result in the imposition of sanctions, up to and including case-terminating sanctions,” see Docket No. 20 at 2, Mr. Cardoza failed to request a continuance or to inform the Court of Plaintiff’s non-appearance before the hearing began.

Having reviewed the record and considered the arguments presented, it is clear that these shortcomings were caused by Plaintiff’s counsel and that sanctions beyond a warning are appropriate. The Court ORDERS Mr. Cardoza to pay a $1,000 Court fine and Mr. Kutner to pay a $500 Court fine. The Court believes these fines do not fully reflect the effect of counsels’ misconduct on either the integrity of the Court’s docket or the sanctity of Rule 16, Rule 37, and Local Rule IA 4-1. Nonetheless, in this instance, the Court believes the sanction is sufficient to deter similar misconduct. The sanctions are personal to Mr. Cardoza and Mr. Kutner. Payment shall be made within ten days as a Court fine to the “Clerk, U.S. District Court.” Mr. Cardoza and Mr. Kutner shall submit proof of payment to the undersigned Judge’s chambers within five days of payment.

In addition to the Court fine, the Court ORDERS Mr. Cardoza to read the Local Rules of Practice for the United States District Court for the District of Nevada in their entirety, as well as Special Order No. 109 (including the attached “Electronic Filing Procedures”) in its entirety, and to submit a declaration stating that he has done so no later than July 30, 2013.

Lastly, the Court takes Plaintiff’s attorneys at their word that they have remedied the situation so that future Court orders will be obeyed. The Court expects strict compliance with all Court orders in the future and again cautions counsel that future disobedience may result in severe sanctions, up to and including case-dispositive sanctions.

Exhibit B: Sierzega v. Country Preferred Ins. Co., 2013 U.S. Dist. LEXIS 120095 (D. Nev. Aug. 22, 2013) (same re no West cite)

ORDER REQUIRING ATTORNEYS DAVID FELDMAN, RUSTY GRAF, AND THOMAS CHRISTENSEN TO READ THE LOCAL RULES TO THE EXTENT THEY ARE UNFAMILIAR WITH PRACTICE IN THIS COURT

It is a simple task to comply with the Local Rules governing submission of a proposed discovery plan. The Local Rules clearly articulate a set of deadlines that are deemed presumptively reasonable, and establish the procedures for requesting deadlines different from the typical deadlines. See Local Rule 26-1. The task of submitting a proper discovery plan is further simplified when the Court has expended its resources providing guidance to parties who have submitted an improper discovery plan and ordering them to submit a new discovery plan. Notwithstanding the clarity of the Local Rules and guidance provided by the Court in two orders, counsel in this case has failed to submit a proper discovery plan despite three attempts to do so.

The Court denied the first proposed discovery plan because it sought a discovery period beyond the presumptively-reasonable period without a sufficient explanation why additional time was needed in this case. Docket No. 13. The Court also explained how the presumptively-reasonable discovery period should be calculated. Id. (“The presumptive discovery period is 180 days from the date the first defendant answers or appears”). The Court further denied the first proposed discovery plan because it misstated Local Rule 26-4 as it relates to the timing requirements for seeking extensions to discovery deadlines. Id.

The parties then submitted a second discovery plan. That second proposed discovery plan sought a discovery period of 180 days from the date of Defendant’s answer. See Docket No. 15 at 2. While the discovery plan was in compliance with the Local Rules on the length of the discovery period, it continued to misstate Local Rule 26-4. Id. at 3. As such, the Court denied the second proposed discovery plan so that the parties could correctly state the timing requirements for seeking extensions. See Docket No. 16. n1

The parties have now submitted a third proposed discovery plan. See Docket No. 17. The third discovery plan correctly states the timing requirements for extensions provided for in Local Rule 26-4. See id. at 3. Inexplicably, however, the third proposed discovery plan changed the deadlines from those provided in the second proposed discovery plan and seeks to afford the parties additional time to conduct discovery. See id. at 2. As noted above, the Court had already expressly ruled that the presumptively-reasonable discovery period was 180 days from the date the Defendant answers or appears, and that any request for an additional period had to be supported by sufficient explanation. See Docket No. 13. In contrast, the third proposed discovery plan seeks a discovery period of 180 days “measured from the parties’ Discovery Conference,” which results in a discovery period beyond that outlined in Local Rule 26-1(e). See Docket No. 17 at 2. No explanation is given why a longer period is needed. The discovery plan also incorrectly asserts that it “IS SUBMITTED IN COMPLIANCE WITH LR 26-1(e).” Id. at 1 (emphasis in original).

“Just as an attorney who always practices in state court is expected to know the rules of administration and operation particular to that court, we expect an attorney practicing law in federal court to become familiar with and follow rules applicable to practice in this court.” Dela Rosa v. Scottsdale Mem. Health Sys., Inc., 136 F.3d 1241, 1244 (9th Cir. 1998). Given counsels’ three failed attempts at submitting a discovery plan that complies with the simple requirements outlined in the Local Rules (and further explained in the Court’s orders), it appears that counsel is not sufficiently familiar with practice in this Court. In such circumstances, the Court may require counsel to undertake the steps to prepare themselves to practice in this Court. See, e.g., Cabrera v. New Albertson’s, Inc., 2013 U.S. Dist. Lexis 101497, *7 n.5 (D. Nev. July 19, 2013) (citing 4 Exotic Dancers v. Spearmint Rhino, 2009 U.S. Dist. Lexis 9841, *1 n.1 (C.D. Cal. Jan. 29, 2009) and Kwok v. Reconstrust Co., N.A., 2010 U.S. Dist. Lexis 128063, *5-6 (D. Nev. Nov. 19, 2010)). Accordingly, the Court hereby ORDERS attorneys David Feldman, Rusty Graf and Thomas Christensen to read the Local Rules of Practice for the United States District Court for the District of Nevada to the extent they are unfamiliar with them.

The Court also again cautions counsel that the Court expects strict compliance with the Federal Rules of Civil Procedure, Local Rules and Court orders. This order provides counsel an opportunity to familiarize themselves with practice in this Court before the Court orders sanctions against them. In the future, however, the Court CAUTIONS counsel that failure to abide by the rules and/or orders may result in significant sanctions against counsel and/or the parties, up to and including case-terminating sanctions and monetary sanctions. In light of the numerous warnings provided and this opportunity to become familiar with practice in this Court, counsel and the parties should anticipate that future violations of Court rules or orders will result in significant sanctions.

Exhibit C: Davis v. Clark County Sch. Dist., 2013 U.S. Dist. LEXIS 128937 (D. Nev. Sept. 9, 2013)

ORDER SANCTIONING ATTORNEY ERIC ROY

This matter is before the Court on the order for Plaintiff and her counsel, Eric Roy, to show cause why they should not be sanctioned. Docket No. 72. Plaintiff and her counsel filed a written response to the order to show cause. Docket No. 73. The Court finds this matter properly resolved without oral argument. See Local Rule 78-2. For the reasons discussed below, the Court hereby DISCHARGES the order to show cause as it relates to Plaintiff herself and SANCTIONS Eric Roy as follows.

Attorneys are required to follow Court orders. Rule 16(f) requires counsel to comply with pretrial orders and provides that the Court may order any “just” sanctions, including those outlined in Rule 37(b)(2)(A)(ii)-(vii), for non-compliance. Whether the party and/or its counsel disobeyed the court order intentionally is impertinent; sanctions may be imposed when the parties and their counsel disobey a court order. See Lucas Auto. Eng’g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001). Rule 16(f) “was designed not only to insure expeditious and sound management of the preparation of cases for trial but to deter conduct that unnecessarily consumes ‘the Court’s time and resources that could have been more productively utilized by litigants willing to follow the Court’s procedures.'” Martin Family Trust v. NECO/Nostalgia Enters. Co., 186 F.R.D. 601, 603 (E.D. Cal. 1999) (quoting Mulkey v. Meridian Oil, Inc., 143 F.R.D. 257, 262 (W.D. Okla. 1992)). Indeed, the rule also makes clear that “concerns about burdens on the court are to receive no less attention than concerns about burdens on opposing parties.” Matter of Baker, 744 F.2d 1438, 1441 (10th Cir. 1984) (en banc).

In the pending order to show cause, the Court identified four orders that Mr. Roy disobeyed. In particular, Mr. Roy failed to comply with three orders to submit a settlement statement prior to the scheduled settlement conference. See Docket No. 72 at 1-2 (listing orders). In light of Mr. Roy’s failure to submit a settlement statement, the Court vacated the settlement conference. Docket No. 71. Mr. Roy also failed to comply with the Court’s order to file a redacted version of the amended complaint. See Docket No. 72 at 2.

In responding to the order to show cause, Mr. Roy first argues that he fired, in November 2012, his only staff member trained to track federal cases and that all Court notices were sent to that former employee’s email address. See Response at 2. Mr. Roy further notes that he did not think of updating the CM/ECF system with a new email address “as there had been no activity in this case since October 1, 2012.” See id. at 2-3. The Court finds that reasoning unpersuasive. Counsel bears the responsibility of updating his CM/ECF email address, and of reviewing and responding to Court orders. See Local Ad Link, Inc. v. Adzzoo, LLC, 2012 U.S. Dist. Lexis 79130, *8 (D. Nev. Apr. 16, 2012 ) (“attorneys have full responsibility to ensure their user information, including their email address . . . is accurate” (internal quotations omitted)); see also Cabrera v. New Albertson’s Inc., 2013 U.S. Dist. Lexis 101497, *4 (D. Nev. July 19, 2013). Counsel is not relieved of that duty simply because there had been no activity in the case for a few weeks at the time he fired the employee who had been receiving the CM/ECF notices. Moreover, and significantly, Mr. Roy was made aware on numerous occasions that the case was moving forward and that he was not receiving the Court’s notices. See, e.g., Response at 3 (noting that, although he did not receive the Court’s notice, Mr. Roy became aware of the order denying Defendant’s motion to dismiss); id. (noting that Mr. Roy was made aware of the minute order setting a status conference for June 4, 2013, only when opposing counsel mentioned it); id. (noting that Mr. Roy was not aware of the Court’s minute order continuing the status conference until opposing counsel mentioned it). Thus, it has been clear to Mr. Roy for several months that he has not been receiving Court notices, but he still did not update his email address. n3

Mr. Roy next asserts that he did not realize that he was required to submit a settlement statement prior to the settlement conference. See, e.g., Response at 4 (asserting that for continued settlement conference counsel continued to be “under the mistaken assumption that none was required”). Even assuming that Mr. Roy did not get the myriad orders setting deadlines for submitting settlement statements, it is abundantly clear that at the very least he did know that a settlement statement was due before the continued settlement conference set for August 26, 2013. The Court’s staff called Mr. Roy’s office in light of his failure to comply with the Court’s order to submit a settlement statement no later than August 6, 2013. Following that telephone call, on August 12, 2013, Mr. Roy sought to continue the settlement conference. Docket No. 66 The stipulation, drafted on Mr. Roy’s pleading paper and signed by Mr. Roy, requires the submission of a settlement statement prior to the continued settlement conference: “A settlement statement/brief shall be submitted no later than 5 days prior to that conference.” Id.; accord id. at 2 (proposed order stating “A settlement statement/brief shall be submitted no later than 5 days before that conference”). Mr. Roy is therefore disingenuous at best in asserting that he did not realize he had to submit a settlement statement before the settlement conference set for August 26, 2013.

In light of the above, it is clear that sanctions are appropriate. The Court finds that Defendant should be compensated for its costs in preparing for the settlement conference, which was vacated due to Mr. Roy’s failure to obey Court orders. To that end, Defendant shall submit, no later than September 16, 2013, a declaration of its costs and attorney’s fees in preparing for the settlement conference. Mr. Roy may respond to that request no later than September 23, 2013. These costs and fees shall be paid by Mr. Roy personally.

In addition to the above, Mr. Roy shall undertake steps to better prepare himself to practice in this Court. See 4 Exotic Dancers v. Spearmint Rhino, 2009 U.S. Dist. Lexis 9841, at *1 n.1 (C.D. Cal. Jan. 29, 2009) (requiring counsel to read the local rules, electronic filing procedures, and orders regarding motion practice and procedure, and to file a declaration indicating that he had done so); see also Kwok v. Recontrust Co., N.A., 2010 U.S. Dist. Lexis 128063, *5-6 (D. Nev. Nov. 19, 2010) (sanctions available include, inter alia, “requiring participation in CLE courses, seminars, and other educational programs”). n5 To that end, the Court ORDERS that Mr. Roy must read the Local Rules of Practice for the United States District Court for the District of Nevada in their entirety, as well as Special Order Nos. 108 and 109 in their entirety, and to submit a declaration stating that he has done so no later than September 23, 2013.

Lastly, the Court expects that Mr. Roy has remedied the situation with his email notifications so that future Court orders will be obeyed. The Court expects strict compliance with all Court orders, as well as the Local Rules, in the future. The Court again cautions Plaintiff and Mr. Roy that failure to do so may result in significant sanctions, up to and including case-dispositive sanctions.