289 F.R.D. 548
N.D. Cal.2013Background
- Objectors Alison Paul and Leveta Chesser and their counsel Palmer were found in civil contempt and sanctioned $9,254.11 for failure to comply with a November 14, 2012 deposition order.
- The court issued an order to show cause on January 9, 2013, with a February 12, 2013 hearing date.
- Paul and Kessel (unnamed IPP class member) initially objected to Round 1 settlements; Paul and Kessel later appealed; Paul received a deposition subpoena.
- Special Master ordered Paul and Kessel to appear for depositions and produce documents; Paul and Chesser filed objections, which the court denied.
- The court ultimately determined Palmer violated the deposition order by not coordinating or producing his clients for depositions, and Paul and Chesser did not appear for the scheduled depositions.
- The sanctions are stayed for ten days to allow contemnors to seek a stay from the Ninth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Paul and Chesser, and Palmer, violate the November 14, 2012 deposition order? | IPP contends order required appearance and cooperation; noncompliance occurred. | Palmer argues no clear fault; he did not control client attendance; scope/efforts disputed. | Yes; violators liable for civil contempt. |
| Are monetary sanctions warranted and properly calculated? | Fees and costs incurred pursuing depositions after order justify sanctions. | Sanctions excessive or miscalculated; need for proportionality. | Sanctions awarded in the amount of $9,254.11. |
| Is Palmer responsible for his clients’ noncompliance? | Palmer failed to communicate and coordinate deposition scheduling. | Requests overbroad; lack of client appearance not imputed to him. | Palmer liable for contempt due to failure to coordinate. |
| Should the order be stayed pending appeal? | Immediate contempt sanctions needed to compel compliance. | A stay may be sought; contemnors given ten-day stay window. | Stay granted for ten days. |
Key Cases Cited
- Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006) (contmalink clear, definite order required for civil contempt)
- Balla v. Idaho State Bd. of Corr., 869 F.2d 461 (9th Cir. 1989) (clear and definite command required for contempt)
- Wolfard Glassblowing Co. v. Vanbragt, 118 F.3d 1320 (9th Cir. 1997) (clear and convincing evidence standard for contempt)
- Adriana Intern. Corp. v. Thoeren, 913 F.2d 1406 (9th Cir. 1990) (prejudice considerations in sanctions context)
- PPA Products Liability Litig. (In re Phenylpropanolamine), 460 F.3d 1217 (9th Cir. 2006) (sanctions and remedies considerations in complex litigation)
- Perry v. O'Donnell, 759 F.2d 702 (9th Cir. 1985) (fees and costs as remedial sanctions in civil contempt)
- U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 444 F.3d 462 (6th Cir. 2006) (MDL context; cross-district enforcement authority)
- General Ins. Co. v. Eastern Consol. Util., Inc., 126 F.3d 215 (3d Cir. 1997) (monetary sanctions for non-party’s failure to appear)