Opinion
19-cv-00346-MMA-JLB
11-29-2021
BARRY ERNEST OCHOA, Plaintiff, v. CARLA FRIEDERIKE VON LINTIG, Defendant.
ORDER FOLLOWING SEPTEMBER 28, 2021 ORDER TO SHOW CAUSE REFERRING COUNSEL PHILIP DEITCH TO THE STANDING COMMITTEE ON DISCIPLINE [ECF Nos. 67; 73; 74]
Hon. Jill L. Burkhardt United States Magistrate Judge
Plaintiff Barry Ernest Ochoa's (“Plaintiff”) counsel Philip Deitch failed to comply with various Court orders and did not provide satisfactory reasons for his repeated failures. Therefore, the Court concludes that this matter is to be referred to this Court's Standing Committee on Discipline.
On May 25, 2021, Defendant Carla Friederike Von Lintig (“Defendant”) filed a Motion for Summary Judgment, which the Court set for a hearing on July 12, 2021. (ECF Nos. 64; 65.) In accordance with Civil Local Rule 7.1.e.2, Plaintiff's opposition was due on June 28, 2021. (ECF No. 65.) No. opposition was filed.
On August 6, 2021, District Judge Michael M. Anello ordered Mr. Deitch to clarify his status as attorney of record by either filing a Notice of Continuing Appearance or a Motion to Withdraw as Attorney of Record by August 13, 2021. (ECF No. 66.) Mr. Deitch failed to comply with the Court's order.
The order also stated, “In the event Plaintiff's counsel files a Notice of Continuing Appearance, he must also indicate whether Plaintiff wishes to file a response in opposition to Defendant's motion for summary judgment, and if so, show cause why the Court should excuse Plaintiff's failure to do so prior to the expiration of the previous filing deadline.” (Id. at 2.)
On September 28, 2021, Magistrate Judge Jill L. Burkhardt issued an Order to Show Cause (“OSC”) why sanctions should not be imposed for Mr. Deitch's failure to comply with Judge Anello's August 6, 2021 Order. (ECF No. 67.) The OSC ordered Mr. Deitch to file a written declaration by October 12, 2021, addressing why he failed to comply with the Court's August 6, 2021 Order and to clarify his status as attorney of record. (Id.) Mr. Deitch failed to file his declaration.
On October 28, 2021, Judge Burkhardt held a Show Cause Hearing. Although the OSC directed Mr. Deitch to call into the hearing on the Court's teleconference line (ECF No. 67 at 2), Mr. Deitch failed to appear on time at 1:00 PM. Judge Burkhardt's staff was able to contact Mr. Deitch by 1:15 PM and orally provide him with directions on how to call into the Court's teleconference line. At the hearing, Mr. Deitch expressed to the Court that he had recently been released from the hospital the day before the hearing. (ECF No. 75 at 2.) When the Court inquired about Mr. Deitch's lack of participation in Plaintiff's case, Mr. Deitch said that he had “been trying to get [Plaintiff] another lawyer in San Diego because it would be a serious problem for [him] to try a case in San Diego” due to his wife's medical issues. (Id. at 4.) Mr. Deitch said that “things [were] kind of up in the air” regarding his representation of Plaintiff, but that if he “[had] to represent him by court order, [he would].” (Id. at 5.) Judge Burkhardt pointed out to Mr. Deitch that his status of attorney of record was “not by operation of court order.” (Id.) Further, Judge Burkhardt stated that although she was sympathetic to the issues Mr. Deitch had experienced regarding his family's medical issues, the Show Cause Hearing was to “help [him] recognize that inaction [was] the worst possible option.” (Id. at 6.) Mr. Deitch told the Court he intended to file an opposition to Defendant's motion for summary judgment, although the due date for his filing had long passed. (Id. 6-7.)
Based on this representation, the Court ordered Mr. Deitch to file a Motion for Extension of Time to file an opposition to Defendant's motion for summary judgment by the end of the next day, October 29, 2021. (ECF No. 69 at 1.) By the same date, the Court also ordered Mr. Deitch to File a Notice of Change of Address to have the Clerk of Court modify the docket to reflect his preferred e-mail address. (Id.) The Court set a continued Show Cause Hearing for November 18, 2021. (Id. at 1-2.)
Although Mr. Deitch placed a number of telephone calls to Judge Burkhardt's chambers and received guidance from Judge Burkhardt's staff on how to obtain assistance with filing a document through CM/ECF, Mr. Deitch failed to file both a motion for extension of time and notice of change of address.
On November 15, 2021, Judge Anello granted Defendant's unopposed motion for summary judgment. (ECF No. 70.)
On November 18, 2021, the Court held a continued Show Cause Hearing. Mr. Deitch failed to appear at the hearing's scheduled time of 1:00 PM. (ECF No. 73.) However, Mr. Deitch proceeded to place two telephone calls to Judge Burkhardt's chambers and left voicemail messages explaining that he did not realize he needed to call into the Court's teleconference line.
After Judge Burkhardt's staff called Mr. Deitch back and once again provided him with directions on how to call into the Court's teleconference line, Judge Burkhardt reconvened the Show Cause Hearing at 1:50 PM. (ECF No. 76 at 2-3.) Mr. Deitch failed to provide satisfactory reasons for his repeated failures to follow Court orders. When Judge Burkhardt stated that she believed Mr. Deitch's “non-compliance [was] not willful” and that she thought perhaps “compliance exceed[ed] [his] capability, ” Mr. Deitch replied, “That may very well be.” (Id. at 9-10.)
Based on the foregoing and pursuant to Local Civil Rule 2.2.e., the Court declines to impose monetary sanctions for Mr. Deitch's repeated failures to comply with court orders and instead refers Mr. Deitch to the Standing Committee on Discipline for consideration of the conduct described herein so that the Committee may evaluate the propriety of Mr. Deitch's continued admission to practice in the Southern District of California and/or consider any other authorized actions the Committee deems appropriate after completing its investigation.
IT IS SO ORDERED.