Opinion
21-56222
11-14-2022
DWIGHT BANKS, Plaintiff, and MICHAEL A. TAIBI, Attorney for Plaintiff, Appellant, v. WHAMBO! ENTERPRISES, LLC, DBA Bagby Beer Company; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted October 17, 2022 Pasadena, California
Appeal from the United States District Court No. 3:20-cv-01674-LAB-DEB for the Southern District of California Larry A. Burns, District Judge, Presiding
Before: WATFORD and HURWITZ, Circuit Judges, and VITALIANO, [**] District Judge.
MEMORANDUM [*]
Attorney Michael Taibi appeals the district court's imposition of two Federal Rule of Civil Procedure 16(f) monetary sanctions payable to the court: one for $500 and one for $1,000. We review the imposition of sanctions for abuse of discretion, Pac. Harbor Cap., Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1117 (9th Cir. 2000), but review due process claims de novo, Lasar v. Ford Motor Co., 399 F.3d 1101, 1109 (9th Cir. 2005). We have jurisdiction under 28 U.S.C. § 1291, and affirm in part, vacate in part, and remand.
1. We affirm the $500 sanction imposed for Taibi's failure to meet and confer before an Early Neutral Evaluation Conference ("ENE"). Rule 16(f) permits sanctions against attorneys who fail "to obey a . . . pretrial order." Taibi does not contest that he failed to comply with the district court's orders to meet and confer before the ENE. His claim that COVID-19 prevented him from doing so was properly rejected by the district court, as the orders expressly provided that if COVID-19 precluded an in-person meeting, counsel should "jointly call Chambers," which Taibi did not do.
Taibi's reliance on Goodyear Tire &Rubber Co. v. Haeger, 137 S.Ct. 1178 (2017), is misplaced. That case explained that a court may use its inherent authority to impose punitive sanctions only by following the procedures applicable to criminal cases. Id. at 1186. Although the $500 sanction was payable to the court, the court did not sanction Taibi under its inherent authority, but instead did so under Rule 16(f)(1). Rule 16(f)(1) sanctions, unlike sanctions imposed under a court's inherent authority, require only "notice and an opportunity to be heard." Ayers v. Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). The sanction therefore did not require the full panoply of procedural protections applicable to a criminal contempt proceeding.
Taibi received ample notice and an opportunity to be heard. The district court issued an Order to Show Cause ("OSC") that put Taibi on notice that it was considering sanctions for his failure "to timely participate" in the court-ordered meet and confers. Taibi also knew that the court was considering monetary sanctions because it had requested a summary of opposing counsel's costs, which exceeded $500. Taibi had the opportunity to be heard and to present evidence at the later OSC hearing.
Orders by other district judges imposing sanctions on Taibi for similar acts were a proper subject of judicial notice. Fed.R.Evid. 201; see Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). And, in any event, as the court explained, the sanctions it imposed "redress[ed] only the conduct that occurred in this case."
2. We vacate the $1,000 sanction. An OSC notified Taibi of possible sanctions for failing to produce Banks at a scheduled ENE. But, the court's sanctions order instead focused heavily on Taibi's alleged misstatements made to explain Banks's nonappearance. If the sanction was for Banks's nonappearance, the court did not explain why uncontested evidence that Banks was in a rehabilitation facility on the date of the scheduled ENE was not an adequate excuse for Taibi's failure to produce him. And, the OSC did not put Taibi on notice before the hearing that the court was considering sanctions for any alleged misrepresentations. We thus vacate the $1,000 sanction and remand for the district court either to (1) explain why Banks being in a rehabilitation facility does not excuse Taibi's failure to produce him; or (2) provide Taibi with notice and an opportunity to be heard on whether sanctions should be imposed for the alleged misrepresentations.
Taibi also challenges the district court's Local Civil Rule 2.2e referral to the Standing Committee on Discipline. We do not vacate the referral because, even in the absence of the $1,000 sanction, the original reason for the referral (Taibi's filing and settlement of lawsuits while he and Mr. Banks were purportedly not in communication), as well as the $500 sanction and previous sanctions imposed on Taibi, provide independent bases for the referral.
After notice and an opportunity to be heard, if the district court still wishes to sanction Taibi for his purported lack of candor, the court should indicate under what authority it is proceeding. Rule 16(f) does not authorize sanctions for lack of candor, but Rule 11, for example, would.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation.