Holmes v. Estock

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CHARLES HOLMES, Case No. 16-cv-2458-MMA (BLM)

11 Plaintiff, ORDER FOLLOWING MAY 16, 2022 12 v. STATUS CONFERENCE 13 ESTOCK, et al., 14 Defendants. 15 16 On May 16, 2022, the Court held a status conference for the primary purpose of 17 determining whether Plaintiff Charles Holmes’ attorney, Mr. Brian Vogel, intended to 18 proceed as counsel. Prior to the hearing, the Court ordered Mr. Vogel to show cause why 19 sanctions should not issue for failure to prosecute. See Doc. No. 157 (the “OSC”). The 20 OSC details Mr. Vogel’s history of noncompliance, which the Court incorporates by 21 reference here. In sum, over the last two years Mr. Vogel missed eight deadlines, sought 22 five extensions to oppose summary judgment, and was ordered to show cause twice for 23 his failure to prosecute this case. Mr. Vogel’s conduct and pattern of inaction 24 significantly delayed the adjudication of this case. Resolution of Defendants’ summary 25 judgment motion was delayed by nearly one year, and due to Mr. Vogel’s failure to meet 26 key pretrial deadlines, the trial set to begin on February 22, 2022 has yet to be reset. 27 Based upon Mr. Vogel’s representations, see Doc. No. 158, the Court discharged 28 the OSC and ordered Mr. Vogel to file either a motion to withdraw from the case or 1 notice of substitution by March 11, 2022, see Doc. No. 161. The Court warned 2 Mr. Vogel that if he failed to meet this deadline, the Court would impose a sanction of 3 $100 per day. Id. 4 “[C]ourts have inherent power to enforce compliance with their lawful orders 5 through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370 (1966) (internal 6 citations omitted). Civil contempt occurs when a party disobeys “a specific and definite 7 court order by failure to take all reasonable steps within the party’s power to comply.” In 8 re Dual—Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 9 1993); Reno Air Racing Ass’n., Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). 10 “The contempt need not be willful, and there is no good faith exception to the 11 requirement of obedience to a court order. . . . But a person should not be held in 12 contempt if his action appears to be based on a good faith and reasonable interpretation of 13 the court’s order.” In re Dual-Deck, 10 F.3d at 695 (internal citations, quotations, and 14 alterations omitted). 15 “Civil contempt is characterized by the court’s desire to compel obedience to a 16 court order or to compensate the contemnor’s adversary for the injuries which result from 17 the noncompliance.” United States v. Bright, 596 F.3d 683, 695–96 (9th Cir. 2010) 18 (internal citation omitted). Accordingly, there are two forms of civil contempt sanctions: 19 compensatory and coercive. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 20 770, 778 (9th Cir. 1983). Coercive civil sanctions are “intended to coerce the contemnor 21 to comply with the court’s orders in the future” and are therefore conditioned upon the 22 contemnor’s continued noncompliance. Richmark Corp. v. Timber Falling Consultants, 23 959 F.2d 1468, 1481 (9th Cir. 1992). Thus, when imposing a coercive civil contempt 24 sanction, the court must provide a “subsequent opportunity to reduce or avoid the fine 25 through compliance.” See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 26 821, 829 (1994). Upon the contemnor’s compliance, the coercive sanction ceases. Id. 27 To determine whether a coercive sanction is appropriate, courts must “consider the 28 character and magnitude of the harm threatened by continued contumacy” as well as the 1 probable effectiveness the sanction. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 2 517 (9th Cir. 1992). A “per diem fine imposed for each day a contemnor fails to comply 3 with an affirmative court order” is a “paradigmatic civil contempt sanction.” See United 4 States v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999); NLRB v. Ironworkers Local 433, 169 5 F.3d 1217, 1222 (9th Cir. 1999) (describing per diem fines as a method of “coercing 6 future compliance” with court orders); see also In re Rubin, 172 F.3d 876 (9th Cir. 1999) 7 (affirming $100 per day contempt fine); In re E. W. Const. Co., Inc., 21 F.3d 1112 (9th 8 Cir. 1994) (same); Rich v. Kirkland, No. CV 11-4272-JLS (SPx), 2016 U.S. Dist. LEXIS 9 5657, at *12 (C.D. Cal. Jan. 15, 2016) (ordering $200 per day contempt sanction); 10 Facebook, Inc. v. Power Ventures, Inc., No. 08-CV-05780-LHK, 2017 U.S. Dist. LEXIS 11 125541, at *48 (N.D. Cal. Aug. 8, 2017) (ordering $100 per day contempt sanction). 12 Mr. Vogel did not meet the March 11, 2022 deadline. By April 11, 2022, he had 13 amassed a sanction of $3,000, and so the Court set a status conference for May 16, 2022 14 at 2:30 p.m. Doc. No. 163. At 1:39 p.m. on May 16, Mr. Vogel filed a motion to 15 withdraw, which lacked both an accompanying declaration and proper notice of service 16 on his client. Doc. No. 165. Accordingly, it did not comply with the local rules, see 17 CivLR 83.3.f.3, and Mr. Vogel’s contempt amounted to a sanction of $6,500. 18 Based upon Mr. Vogel’s representations at the hearing, the Court found that his 19 noncompliance ceased on May 16, 2022, and reduced the sanction to $3,250.1 Doc. 20 No. 166. The Court will also refer Mr. Vogel to the Standing Committee on Discipline 21 for consideration of his conduct in this case so that the Committee may evaluate the 22 propriety of Mr. Vogel’s continued admission to practice in the Southern District of 23 California and/or consider any other authorized actions the Committee deems appropriate 24 after completing its investigation. 25 26 27 28 1 Plaintiff participated in the status conference by telephone and consented to 2 || Mr. Vogel’s withdrawal.” Accordingly, the Court granted Mr. Vogel’s motion and now 3 sponte reconsiders Plaintiff's prior motion for appointment of counsel pursuant to 28 4 ||U.S.C. § 1915(e)(1) as the case has survived summary judgment and refers the case to its 5 || Pro Bono Panel for potential pro bono representation pursuant to G.O. 596, “Plan for the 6 || Representation of Pro Se Litigants in Civil Cases,” which provides that the Court may 7 || appoint trial counsel as a matter of course in a prisoner civil rights case where summary 8 ||judgment has been denied. Subsequent to the appointment of trial counsel, the Court will 9 || issue a scheduling order setting forth all relevant pretrial deadlines and hearings. 10 Moreover, as Plaintiff is currently housed at Kern Valley State Prison, the Court 11 || DIRECTS the Clerk of Court to update Plaintiff's address accordingly and mail him a 12 || copy of this Order. Plaintiff is advised that until he obtains representation, he has an 13 || obligation to keep the Court and opposing parties apprised of his current address pursuant 14 || to Civil Local Rule 83.11.b. 15 IT IS SO ORDERED. 16 Dated: May 18, 2022 7 BMaihel l= chiller 18 HON. MICHAEL M. ANELLO 19 United States District Judge 20 21 22 23 24 25 26 27 28 Mr. Vogel also provided the Court with a supporting declaration at the hearing. -4- 16-cv-2458-MMA (BLM)