Opinion
No. CV 00-07149 ABC (CWx)
February 8, 2002
On October 19, 2001, defendants Sheriff Sean D. Banks ("Banks"), Sheriff Thomas J. Garcia ("Garcia"), Leroy Baca ("Baca"), Zev Yaroslavsky ("Yaroslavsky"), Michael Antonovich ("Antonovich") and Yvonne Burke ("Burke") filed a "Request for Leave to File Motion for Summary Judgment Beyond the Scheduled Motion Cut-off date" and lodged concurrently therewith a motion for summary judgment by defendants Baca, Banks and Garcia ("Motion for Summary Judgment"). The motion cut-off date in this case was set for September 10, 2001 and the discovery cut-off date was set for August 31, 2001.
On November 6, 2001, the Court granted that request and filed Baca, Banks and Garcia's motion for summary judgment. This motion was scheduled to be heard on February 11, 2002.
On January 18, 2002, defendants Donald Knabe ("Knabe"), Gloria Molina ("Molina"), Antonovich, Burke and Yaroslavsky (collectively, the "Supervisor Defendants"), represented by Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP ("Christensen, Miller"), filed a motion for summary judgment ("Supervisor Defendants' Motion for Summary Judgment"). On January 28, 2002, Plaintiff opposed the filing of that motion, requested that it be stricken and requested that the Court impose sanctions on the Supervisor Defendants on the ground that the Supervisor Defendants' Motion for Summary Judgment was filed in violation of the Court's order. On January 30, 2002, the Court issued a minute order striking the Supervisor Defendants' Motion for Summary Judgment because it was filed after the motion cut-off date and without leave of Court.
The Court notes that on August 16, 2001, Christensen Miller filed a "Notice of Association of Counsel." in which it indicated that it had "become associated with the law firm of Manning Marder, Kass, Ellrod, Ramirez, LLP, as attorneys for Defendants Michael Antonovich, Yvonne Burke, Donald Knabe, Gloria Molina, and Zev Yaroslvasky, in their individual capacities." See Notice of Association of Counsel at 2.
As discussed in the Court's January 30, 2002 minute order, the Court's November 6, 2001 Order granting defendants' "Request for Leave to File Motion for Summary Judgment Beyond the Scheduled Motion Cut-off date" (the "Request") permitted defendants to file the motion for summary judgment lodged concurrently with the Request. The Court's order granting leave to file applied to that one summary judgment motion and did not grant defendants unfettered leave to continue filing motions well beyond the established motion cut-off date. Even if defendants had interpreted the Court's grant of the Request as permitting the filing of additional motions, which it did not, the Supervisor Defendants waited over two months from the Court's granting of the Request before bringing their motion for summary judgment.
On February 4, 2002, the Supervisor Defendants filed an "Ex Parte Application for an order either: (1) Reinstating their Summary Judgment Motion; or (2) Extendilig the Motion Cut-off Date to Permit the Hearing on their Motion." On February 5, 2002, Plaintiff opposed. On February 7, 2002, the Supervisor Defendants filed, again without leave of the Court, a "Response to Plaintiff's Opposition" ("Response").
The Local Rules do not permit the parties to file additional briefing with respect to an ex parte without leave of the Court. In addition to the fact that the Supervisor Defendants' Response was improperly filed, the substance of the Response is entirely unhelpful to the Court. As an initial matter, counsel for the Supervisor Defendants misrepresents the contents of an October 12, 2001 letter from Mr. Yagman and posits that Mr. Yagman stated "that he would dismiss this case if the Supervisor Defendants provided his counsel with a draft Stipulation and Order re Voluntary Dismissal." (sic) See Response at 2. In the actual letter, which is attached to the Supervisor Defendants' Response as exhibit B Mr. Yagman merely states," . . . if you send us a stipulation an order to voluntarily dismiss without prejudice . . . we then shall consider the matter." See Response, Exh. B. In addition, while this Response indicates that the Supervisory Defendants were indeed attempting to reach a settlement with Plaintiff, that effort does not excuse the fact that the motion cut-off date had already passed and the Supervisory Defendants did not attempt to extend that deadline to permit their filing of motions in this matter. In fact, the "meet and confer" letter was sent to Plaintiff on October 8, 2001, at which point the Supervisor Defendants should have been aware that the motion cut-off date had already passed on September 10, 2001.
For the reasons stated herein, the Court GRANTS the Applications and imposes the sanctions described below.
I. Discussion
The Supervisor Defendants' Ex Parte Application raises the difficult issue for the Court regarding whether a defendant's right to assert the defense of qualified immunity prevails in the face of the defendants' counsel's ignorant or deliberate flaunting of a court's scheduling order, a court's order on a substantive matter and a district's Local Rules. Counsel for the Supervisor Defendants flaunted the Court's scheduling order entered on February 26, 2001 when they filed a motion for summary judgment on January 18, 2002, four months after the September 10, 2001 motion cut-off date. In direct contravention of Local Rule 16-13, Counsel for the Supervisor Defendants did not seek leave of Court for the late filing, and rather, attempted to argue that the Court's November 6, 2001 Order granting defendants leave to file a motion for summary judgment as to defendants Baca, Banks and Garcia, permitted them to file this motion for summary judgment two months later.
Local Rule 16-13 provides that "[a]ny application to modify an order entered pursuant to Fed.R.Civ.P. 16 shall be made to the judicial officer who entered the order."
The Supervisor Defendants argue that they did not file their motion for summary judgment earlier because this Court "lost jurisdiction" over them while they appealed this Court's denial of their motions to dismiss to the Ninth Circuit. The Supervisor Defendants further argue that since they were on appeal until October 12, 2001, more than one month after the motion cut-off date, there was "no possible way the Supervisor Defendants could have filed their motion for summary judgment before the cut-off date." See Application at 4.
The Court notes that on July 26, 2000, defendants Yaroslavsky, Banks and Garcia filed a motion to dismiss part of the claims asserted by Plaintiff. Yaroslavsky asserted that he was entitled to legislative qualified immunity or qualified immunity for his decision to indemnify Sheriff Officers for punitive damage awards. The Court rejected that argument and held that Yaroslavsky was not entitled to absolute legislative immunity and that Yaroslavsky was not entitled to qualified immunity at that stage of the litigation. See October 13, 2000 Order at 4. On February 14, 2001, the Court denied a similar motion by defendants Antonovich and Burke on the same grounds. See February 8, 2002 Minute Order.
Both Plaintiff and Defendants assert that the appeals were dismissed on October 12, 2001. However, this Court's civil docket indicates that Yaroslavsky's appeal was dismissed on October 2, 2001 (and that a voluntary dismissal was granted on November 2, 2001). The docket also indicates that Burkes' and Antonovich's appeal was dismissed on October 19, 2001 (and that a voluntary dismissal was granted on November 26, 2001). While this discrepancy is concerning to the Court, it is not dispositive on the instant motion, as the Court clearly retained jurisdiction over scheduling matters in this case over all defendants.
As an initial matter, the Court notes that the only Supervisor Defendants to appeal to the Ninth Circuit were Yaroslavsky, Antonovich and Burke. Therefore, this Court had not "lost jurisdiction" over Supervisor Defendants Knabe and Molina. Additionally, the Court believes that the Supervisor Defendants' unsupported statement that this Court "lost jurisdiction" over them during the pendency of their appeals is incorrect as a matter of law. The Supervisor Defendants remained in this case, which was never stayed as to them, during the pendency of their appeals. The Supervisor Defendants never sought to modify the Court's scheduling order to continue the discovery cut-off date or the motion cut-off date. Because the Defendants had not been dismissed, the Court does not understand under what theory the Supervisor Defendants believe that this Court lost jurisdiction over them, especially as to scheduling matters or the filing of subsequent motions.
In fact, the cases cited by the Supervisor Defendants, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379, 105 S.Ct. 1327 (1985) and Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400 (1982), do not support their contention that the district court did not have jurisdiction over them while their appeal was pendilig before the Ninth Circuit. The Court in Marrese, for instance, stated that, "[i]n general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal." (emphasis added) Marrese, 470 U.S. at 379. The only aspect of the case involved in the appeals was the Court's denial of Yaroslavsky, Antonovich and Burke's motion to dismiss on qualified immunity grounds. The Court did not lose jurisdiction over any scheduling matters in the case, even as to those three defendants who were appealing the Court's order. Therefore, the Supervisor Defendants could, and should, have filed a motion to extend the motion cut-off date.
However, assuming arguendo that the Supervisor Defendants are correct and the Court lost jurisdiction as to them during their appeals, this Court resumed jurisdiction on October 19, 2001 at the latest. At that time, the Supervisor Defendants should have requested leave to amend the Scheduling Order or extend the motion cut-off date. The Supervisor Defendants, however, did not make any such request. While counsel for the Supervisor Defendants proceeded to ignore the fact that the motion cut-off date had passed, counsel for the other defendants, Manning, Marder, Kass, Ellrod Ramirez, on October 19, 2001, filed a "Request for Leave to File Motion for Summary Judgment Beyond the Scheduled Motion Cut-off date," on behalf of defendants Banks, Garcia, Baca, Yaroslavsky, Antonovich and Burke, and concurrently lodged a motion for summary judgment as to Baca, Burke and Garcia. Christensen, Miller's deliberate or negligent failure to file a motion for summary judgment on qualified immunity grounds on behalf of the Supervisor Defendants is even more egregious because this Court granted the request for leave to file a motion for summary judgment beyond the motion cut-off date brought by the law firm of Manning Marder, Kass, Ellrod, Ramirez LLP.
The Court notes the discrepancy between the date proposed by the parties as the date the appeals were dismissed and the date indicated on the Court's civil docket.
Counsel for the Supervisor Defendants ignored the courtesy and patience shown by this Court and proceeded to "sit on their hands" for an additional two months before attempting to file a motion for summary judgment on behalf of the Supervisor Defendants. There is no excuse for Christensen, Miller's improper conduct, which has caused Plaintiff's counsel and this Court to expend a great deal of time addressing their errors and subsequent efforts to avoid compliance with this Court's orders and the Local Rules of this district.
The Court has carefully deliberated over this matter, as well as Plaintiff's counsel's well-taken opposition, for several days. If the Supervisor Defendants' proposed motion concerned a request to file a motion for summary judgment concerning any subject other than qualified immunity, the Court's decision would have been an easy denial.
However, the Court must weigh against Christensen, Miller's inexcusable violations of the local court rules and the Court's orders, the importance of the right of the Supervisor Defendants to have the Court determine whether they are entitled to qualified immunity. According the Supreme Court, [w]here the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that costs and expenses of trial are avoided where the defense is dispositive. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2155-56 (2001); see also Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034 (1987) (noting that qualified immunity questions should be resolved at the earliest possible stage of a litigation). If the Court were to deny the Supervisor Defendants the opportunity to argue the applicability of the doctrine, the individual defendants — who presumably have no clue that their own attorneys appear to be "clueless" as to the rules governing litigation in this Court — will be forced to proceed to trial. Assuming arguendo that the Supervisor Defendants are indeed entitled to qualified immunity, their attorneys, through their negligent or reckless failure to timely file a motion for summary judgment on the grounds of qualified immunity, have created the very scenario that the doctrine of qualified immunity was designed to guard against.
Weighing the flagrant errors of counsel against the right to have the Court determine whether the Supervisor Defendants are entitled to a determination of qualified immunity, the Court has decided that the right of the Supervisor Defendants to a Court determination must prevail. However, the Court cannot excuse the unacceptable failure to comply with this Court's orders and the Local Rules exhibited by the law firm of Christensen, Miller, which is a large and experienced firm. Its lapses with respect to the failure to timely file the Supervisor Defendants' motion for summary judgment and its later attempt to "sneak in" the motion as timely are inexcusable, and the Court will not in fact excuse them. Therefore, the law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP must be sanctioned for its flagrant violations of the Court's orders and the Local Rules. The Court expressly finds that its violations are either grossly negligent or reckless within the meaning of Local Rule 83-7. In addition, the Court finds that Christensen, Miller's violations have unreasonably and vexatiously multiplied the proceedings within the meaning of 28 U.S.C. § 1927.
Therefore, the Supervisor Defendant's motion is GRANTED. However, the Supervisor Defendants must also file proof of service of the documents described below.
For the reasons discussed below, the Court rules as follows:
1. The Supervisor Defendants' Ex Parte Application is GRANTED to the extent that the Supervisor Defendants' Motion for Summary Judgment filed on January 18, 2002, and subsequently stricken by this Court, is deemed filed as of today, February 8, 2002. The motion, however, is limited to the issue of qualified immunity. Plaintiff's opposition is due by February 25, 2002 and any reply is due by March 4, 2002. The hearing date is set for March 18, 2002.
2. The law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP is SANCTIONED in the amount of $8,000, payable to the Clerk of the Court within ten (10) days of this order. This sanction is based on the law firm's violation of the Court's scheduling order, Local Rule 16-3 and 28 U.S.C. § 1927. The Court's power to sanction in this case is based on Fed.R.Civ.P. 11, Local Rule 83-7, and 28 U.S.C. § 1927.
3. In addition, the law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP is ORDERED to pay to Plaintiff's counsel's attorney's fees in the amount of $1,400.00. Although ordinarily the Court would require Plaintiff's counsel to submit a declaration for fees, it will not do so here as a substantial amount of Plaintiff's counsel's time, as well as the Court's time, has already been wasted by the Supervisor Defendants' original untimely motion and this Ex Parte Application. The Court reaches the amount of $1,400.000 based on its estimate that Mr. Yagman's hourly fee is approximately $350 per hour, and that it required at least three to four hours of his time to prepare and file his well-taken opposition. This order for the payment of Plaintiff's attorney's fees also recognizes that Plaintiff's counsel, like the Court, was forced to interrupt a busy schedule and devote time to respond to a crisis that was entirely of the Supervisor Defendants' counsels own making. Plaintiff's attorney's fee of $1,400 is also payable within ten (10) days of the date of this Order.
4. The law firm of Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP is ORDERED to personally serve this Court Order, along with a cover letter highlighting the sanctions imposed by this Order, to Lloyd W. Pellman, County Counsel of the Los Angeles County Office of County Counsel and the individual offices of Supervisors Antonovich, Burke, Knabe, Molina and Yaroslavsky.
5. The firm is ORDERED to file with this Court proof of payment of the fine and attorney's fees, as well as proof of service of this Court's order and the cover letter explaining the sanctions in the order to its clients, by February 21, 2002.
6. Plaintiff's counsel's request for additional discovery is DENIED, as the discovery cut-off date, October 31, 2002, preceded the Supervisor Defendants' failure to timely file their motion for summary judgment.
No further deviations from the Court's scheduling order or Local Rules will be allowed.
28 U.S.C. § 1927 provides:
Any attorney or other person admitted to conduct cases in any court of the United States . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorneys' fees reasonably incurred because of such conduct.
Local Rule 83-7 provides:
The violation of or failure to conform to any of these Local Rules may subject the offendilig party or counsel to:
(a) monetary sanctions, if the Court finds that conduct was willful, grossly negligent, or reckless;
(b) the imposition of costs and attorneys' fees to opposing counsel, if the Court finds that the conduct rises to the level of bad faith and/or a willful disobedience of a court order; and/or
(c) for any of the conduct specified in (a) and (b) above, such other sanctions as the Court may deem appropriate under the circumstances.