1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DWIGHT BANKS, Case No.: 20-cv-1674-LAB-DEB
12 Plaintiff, REPORT & RECOMMENDATION 13 v. ON ORDER TO SHOW CAUSE
14 WHAMBO! ENTERPRISES LLC, et al.,
15 Defendants. [DKT. NO. 45] 16
17 This Report and Recommendation follows a hearing on an Order to Show Cause 18 issued by the Honorable Larry Alan Burns to Plaintiff’s Counsel Michael A. Taibi. Dkt. 19 No. 45. For the reasons discussed below, the undersigned recommends sanctioning Taibi 20 $500 under Federal Rule of Civil Procedure 11 for misrepresenting facts in his written 21 motions and submissions to the Court, and sanctioning Taibi $500 under Federal Rule of 22 Civil Procedure 16 for failing to produce Plaintiff Banks at the December 18, 2022 Early 23 Neutral Evaluation (“ENE”) conference. 24 I. PROCEDURAL BACKGROUND 25 A. Prior Proceedings 26 This Court previously sanctioned Taibi: (1) $500 for violating its Order to meet and 27 confer before an ENE first set for November 12, 2020, reset to December 8, 2020, and reset 28 1 again to December 18, 2020; and (2) $1,000 for failing to produce his client at the ENEs. 2 Dkt. No. 32. 3 The Ninth Circuit affirmed the $500 sanction but vacated the $1,000 sanction 4 because it “focused heavily on Taibi’s alleged misstatements made to explain Banks’s 5 nonappearance.” Banks v. Whamboo! Enters., LLC, No. 21-56222, 2022 WL 16918023, at 6 *1 (9th Cir. Nov. 14, 2022). The Ninth Circuit remanded the $1,000 sanction with 7 instructions “either to (1) explain why Banks being in a rehabilitation facility does not 8 excuse Taibi’s failure to produce him; or (2) provide Taibi with notice and an opportunity 9 to be heard on whether sanctions should be imposed for the alleged misrepresentations.” 10 Id. The Ninth Circuit further instructed this Court to “indicate under what authority it is 11 proceeding. Rule 16(f) does not authorize sanctions for lack of candor, but Rule 11, for 12 example, would.” Id. at *2. 13 B. Proceedings on Remand 14 On remand, Judge Burns issued an Order to Show Cause (“OSC”) why sanctions 15 should not be imposed under Federal Rule of Civil Procedure 11 for: 16 [Taibi’s] apparent lack of candor regarding Banks’s medical condition and hospitalization. More specifically, Taibi must show cause why Rule 11 17 sanctions shouldn’t be [imposed] based on the following apparently false 18 statements/representations:
19 • “Plaintiff was admitted Palomar Hospital [sic]1 on or about November 20 4, 2020 . . . due to an injury that he received while in the care of Villa Rancho Bernardo Rehab Ceter [sic]. The injury was a severe blow to the head. He is 21 still under care for the injury and unable to attend the afore-referenced [sic] 22 ENE” (Dkt. 8 ¶ 3).
23 24 25 26
27 1 The noted errors are contained in Taibi’s submissions. 28 1 • “Plaintiff’s counsel, Michael A. Taibi, received information on November 9, 202[0] that Plaintiff, . . . had been hospitalized to due [sic] a 2 head injury from an attack that he suffered.” (Dkt. 12 at 2).2 3 • “Plaintiff was admitted Palomar Hospital [sic] on or about November 4 4, 2020 . . . due to an injury that he received while in the care of Villa Rancho 5 Bernardo Rehab Center. The injury was a severe blow to the head. He is still under care for the injury and unable to attend the afore-referenced [sic] ENE.” 6 (Dkt. 13 ¶ 3). 7 • “On December 3, 2020, Plaintiff’s counsel received information 8 indicating that the Plaintiff was still hospitalized and would not be able to 9 attend the ENE scheduled for December 8, 2020 at 11:30 p.m.” (Dkt. 19 ¶ 6). 10 • “So – so, basically, Mr. Banks – the head trauma, he was hit over the head. He was attacked. And he – he basically was in critical condition, and 11 then he was moved to a rehabilitation center after he was able to leave the 12 hospital.” (OSC Hr’g Tr. 8:4–8). 13 • “I think – if I may – if I may, I believe that he was in Palomar for a 14 short period of time, and then he was moved over to the rehabilitation center; if my memory serves me correctly. They moved him over to the one facility. 15 He went to the one hospital first, emergency. And then he was moved to the 16 other facility fairly shortly after he arrived.” (Id. 9:11–17). 17 • Representing that Banks was spent [sic] a short time at Palomar 18 Hospital before being moved to the Rehabilitation Center on October 15, 2020. (Id. 9:18–10:7). 19 20 • “Unfortunately, Mr. Banks’ memory is a bit sketchy from the – from the attack. Unfortunately.” (Id. 10:9–10). 21 Dkt. No. 45 at 3–4. 22 Judge Burns also ordered Taibi to show cause why “sanctions shouldn’t be imposed 23 under Federal Rule of Civil Procedure 16(f) for his failure to produce Banks at the 24 December 18 ENE via telephone or video conference.” Id. at 4. 25 26
27 2 When referencing page numbers for documents filed with the Court, the Court’s citation 28 1 Judge Burns ordered Taibi to “file and serve a declaration under penalty of perjury 2 and any argument or authorities on or before February 13, 2023, explaining why sanctions 3 shouldn’t be imposed under Rule 11 for his apparent lack of candor or under Rule 16(f) for 4 his failure to produce Banks at the December 18 ENE.” Id. at 4–5. Judge Burns set the 5 matter for a March 3, 2023 hearing before the undersigned. Dkt. No. 46. 6 1. Declarations in Response to the Order to Show Cause 7 Taibi filed his Declaration on February 13, 2023. Dkt. No. 48. Taibi also submitted 8 a Declaration from his ADA compliance expert, William Carter. Dkt. No. 49. Taibi’s 9 Declaration, however, was not signed under penalty of perjury as required by federal law. 10 See 28 U.S.C. § 1746 (declaration requirements). Carter’s Declaration didn’t contain a 11 proper jurat either. The Court pointed out these omissions at the March 3, 2023 hearing. 12 Dkt. No. 54 at 4. Taibi subsequently refiled the Declarations. Dkt. Nos. 50, 52. 13 Taibi’s Declaration denied any “‘lack of candor’ on [his] part.” Dkt. No. 52 ¶ 4. 14 Taibi explained he “represented to the Court what [he] had been told at the time,” by 15 undisclosed “third parties[.]” Id. Namely, that “Mr. Banks had been attacked and had 16 suffered an injury to the head for which he sustained head trauma and for which he had 17 been hospitalized.” Id. 18 Taibi declared he “[did] not recall ever telling the Court that Mr. Banks was injured 19 while he was in the rehabilitation facility,” but he “noticed” for the first time when 20 preparing his Declaration that his ex parte motion to continue the ENE “suggested that the 21 injury occurred at the rehabilitation facility.” Id. Taibi characterized this as “an inadvertent 22 typo.” Id. 23 Taibi declared his prior statements and Declarations “suggested that Mr. Banks 24 suffered head trauma for which he was hospitalized and then was admitted into a 25 rehabilitation center for care.” Id. Taibi stated, “I had no reason to disbelieve my client in 26 what I was told” about this sequence of events and “apologize if it can be suggested that I 27 misunderstood the medical records received, or if I did in fact misunderstand the contents 28 of the records as they relate to the actual diagnosis and/or cause of Mr. Banks’ 1 medical/neurological issues for which he was hospitalized and thereafter transferred to a 2 rehabilitation facility.” Id. 3 Carter’s Declaration stated he is an ADA compliance expert who “worked closely 4 with Mr. Taibi and with Mr. Banks for the underlying case,” and “kept in contact with Mr. 5 Taibi and with Mr. Banks throughout the pendency of the case.” Dkt. No. 50 ¶ 5. Carter 6 declared that Taibi asked him for assistance in contacting Banks before the November 2020 7 ENE, but he (Carter) could not reach Banks. Id. ¶ 6. Carter explained he contacted Banks’s 8 mother, who informed him Banks “had been attacked and hit over the head and had suffered 9 head trauma and was in critical condition in Palomar Hospital.” Id. Carter said he “relayed 10 this information to Mr. Taibi.” Id. Carter further declared that “[s]hortly after the time of 11 the ENE, I was able to speak with Mr. Banks briefly who confirmed what his mother had 12 told me, that he had been struck over the head and had suffered trauma, was hospitalized, 13 and that he was not able to participate in an ENE. He stated to me that he had been robbed, 14 hit in the head and knocked unconscious.” Id. ¶ 7. 15 2. The March 3, 2023 Hearing 16 At the March 3, 2023 hearing, Taibi’s attorney confirmed no documentation 17 supported Taibi’s representations that Banks was attacked and hit over the head. Dkt. 18 No. 54 at 5. 19 Regarding Taibi’s December 3, 2020 and December 17, 2020 Ex Parte Applications 20 to Continue the ENEs (wherein he represented that Banks “was admitted Palomar Hospital 21 [sic] on or about November 4, 2020 . . . due to an injury that he received while in the care 22 of Villa Rancho Bernardo Rehab Center,” Dkt. Nos. 8 at 2, 13 at 2), Taibi admitted those 23 statements were inaccurate, and he knew they were inaccurate when he made them. Dkt. 24 No. 54 at 11 (3/3/2023 OSC Hr’g Tr.). Taibi characterized these statements as 25 typographical errors that resulted when he submitted a draft to the Court, rather than a final 26 version. Id. at 11–13, 22. 27 Taibi offered two other explanations for statements about Banks’s condition in his 28 February 24, 2021 Declaration (i.e., “On December 3, 2020, Plaintiff’s counsel received 1 information indicating that the Plaintiff was still hospitalized and would not be able to 2 attend the ENE scheduled for December 8, 2020 at 1:30 p.m.,” Dkt. No. 19 at 2). First, 3 Taibi explained he did not know whether Banks was in an “actual hospital or if he was in 4 a nursing care facility,” but the distinction was immaterial because an individual residing 5 in a nursing facility could be regarded as “hospitalized.” Dkt. No. 54 at 6–8 (3/3/2023 OSC 6 Hr’g Tr.). Second, Taibi stated, “I was told by a third party [that Banks] was still 7 hospitalized.” Id. at 14. 8 II. LEGAL STANDARDS 9 A. Rule 11 10 Rule 11(b) states: 11 Representations to the Court. By presenting to the court a pleading, written motion, or other paper . . . an attorney . . . certifies that to the best of the 12 person’s knowledge, information, and belief, formed after an inquiry 13 reasonable under the circumstances . . . [that the motion or paper] is not being presented for any improper purpose . . . [and] the factual contentions have 14 evidentiary support or, if specifically so identified, will likely have 15 evidentiary support after a reasonable opportunity for further investigation or discovery . . . . 16 17 Fed. R. Civ. P. 11(b)(1), (3). 18 “If, after notice and a reasonable opportunity to respond, the court determines that 19 Rule 11(b) has been violated, the court may impose an appropriate sanction on any 20 attorney, law firm, or party that violated the rule or is responsible for the violation.” Fed. 21 R. Civ. P. 11(c)(1). 22 Rule 11 sanctions are appropriate when a pleading, written motion, or other paper is 23 “frivolous, legally unreasonable, or without factual foundation, even though the paper was 24 not filed in subjective bad faith.” Zaldivar v. City of Los Angeles, 780 F.2d 823, 830–31 25 (9th Cir. 1986), abrogated on other grounds by Cooter v. & Gell v. Hartmarx Corp., 110 26 S. Ct. 2447 (1990). Rule 11 imposes a duty of “reasonable inquiry” to ensure filings are 27 “well grounded in fact . . . .” Islamic Shura Council of S. California v. F.B.I., 757 F.3d 870, 28 872 (9th Cir. 2014) (per curiam); see also Sec. Farms v. Int’l Bhd. of Teamsters, Chauffers, 1 Warehousemen & Helpers, 124 F.3d 999, 1017 n.24 (9th Cir. 1997) (emphasizing that Rule 2 11 imposes a duty on counsel to make further inquiries where necessary to ensure their 3 pleadings are well-grounded in fact); Estate of Blue v. County of Los Angeles, 120 F.3d 4 982, 985 (9th Cir. 1997) (Rule 11 sanctions are appropriate for filings “made without a 5 reasonable and competent inquiry”). 6 Factors to consider in determining whether counsel conducted a reasonable inquiry 7 include: (1) “the knowledge that reasonably could have been acquired at the time the 8 pleading was filed”; (2) “the type of claim and the difficulty of acquiring sufficient 9 information”; (3) “which party has access to the relevant facts”; and (4) “the significance 10 of the claim in the pleading as a whole.” Townsend v. Holman Consulting Corp., 929 F.2d 11 1358, 1364 (9th Cir. 1990) (en banc) (internal quotations omitted). 12 B. Rule 16 13 Rule 16(f) states: 14 Sanctions. 15 (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its 16 attorney: 17 (A) fails to appear at a scheduling or other pretrial conference; 18
19 (B) is substantially unprepared to participate—or does not participate in good faith—in the conference; or 20
21 (C) fails to obey a scheduling or other pretrial order. 22 Fed. R. Civ. P. 16(f). Rule 16(f) “applies to settlement conferences.” Chavarria v. Mgmt. 23 & Training Corp., No. 16-cv-0617-H-RBB, 2016 WL 11621564, at *3 (S.D. Cal. Aug. 25, 24 2016). 25 Rule 16(f) is “broadly remedial and its purpose is to encourage forceful judicial 26 management.” Sherman v. United States, 801 F.2d 1133, 1135 (9th Cir. 1986). Rule 16(f) 27 applies regardless of whether non-compliance with the court order was intentional or in 28 1 Cal. 1999); Lucas Auto. Eng'g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th 2 Cir. 2001). Rule 16 sanctions are discretionary. Nat’l Hockey League v. Metro. Hockey 3 Club, Inc., 427 U.S. 639, 642 (1976) (reviewing sanction for abuse of discretion); Aevoe 4 Corp. v. Shenzhen Membrane Precise Electron Ltd., No. 12-cv-00054-GMN-PAL, 2012 5 WL 2244262, at *7 (D. Nev. June 15, 2012) (“Rule 16(f) gives the court broad 6 discretion . . . .”). Sanctions should not be imposed if “the noncompliance was substantially 7 justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 16(f). 8 III. TAIBI’S MISREPRESENTATIONS ARE SANCTIONABLE UNDER 9 RULE 11 10 The Court finds Taibi’s written motions and submissions seeking to continue and 11 excuse Banks’s appearance at the Court’s ENEs contained false statements. The Court 12 further finds Taibi made those false statements without conducting a reasonable and 13 competent inquiry, and, therefore, Rule 11 sanctions are warranted. 14 A. Taibi’s Written Motions and Submissions Contained False Statements 15 The Court finds Taibi made the following false statements in his written motions 16 and submissions seeking to continue the December 8, 2020 and December 18, 2020 17 ENEs: 18 1. “Plaintiff was admitted Palomar Hospital [sic] on or about November 4, 2020 . . . due to an injury that he received while in the care of Villa Rancho 19 Bernardo Rehab Center. The injury was a severe blow to the head. He is 20 still under care for the injury and unable to attend the afore-referenced [sic] ENE.” 21 22 Dkt. No. 8 ¶ 3.
23 2. “Plaintiff’s counsel, Michael A. Taibi, received information on 24 November 9, 2020 that Plaintiff, . . . . had been hospitalized to due [sic] a head injury from an attack that he suffered.” 25 26 Dkt. No. 12 at 2. 27 3. “Plaintiff was admitted Palomar Hospital [sic] on or about November 4, 2020 . . . due to an injury that he received while in the care of Villa Rancho 28 1 Bernardo Rehab Center. The injury was a severe blow to the head. He is still under care for the injury and unable to attend the afore-referenced [sic] 2 ENE.” 3 Dkt. No. 13 ¶ 3. 4 5 4. “On December 3, 2020, Plaintiff’s counsel received information indicating that the Plaintiff was still hospitalized and would not be able to attend the 6 ENE scheduled for December 8, 2020 at 1:30 p.m.” 7 Dkt. No. 19 ¶ 6.3 8 The record establishes that almost everything about these representations is false: 9 1. Banks was not “admitted to Palomar Hospital on or about November 4, 2020”;4 10 2. Banks did not receive a severe blow to the head “while in the care of Villa 11 Rancho Bernardo Rehab Center,” or any other medical care facility;5 12 13 14 3 Taibi’s oral statements to the Court are not a basis for Rule 11 sanctions. See Christian v. 15 Mattel, Inc., 286 F.3d 1118, 1130 (9th Cir. 2002) (Rule 11 does not authorize sanctions for discovery abuses or misstatements made to the court during an oral presentation); Bus. 16 Guides, Inc. v. Chromatic Commc’ns Enters., 892 F.2d 802, 813 (9th Cir. 1989) (holding 17 that misstatements made during oral argument cannot constitute sanctionable offenses under Rule 11); Fed. R. Civ. P. 11 advisory committee’s note to 1993 amendment, 18 subdivisions (b) and (c) (“The rule applies only to assertions contained in papers filed with 19 or submitted to the court. It does not cover matters arising for the first time during oral presentations to the court, when counsel may make statements that would not be made if 20 there had been more time for study and reflection.”). 21 4 On April 26, 2021, the Court ordered Taibi to submit Banks’s medical records. Dkt. No. 22 30. Taibi submitted those medical records on June 4, 2021. Dkt. No. 33. The medical 23 records show that, contrary to Taibi’s representation that Banks was in “critical condition” due to an “attack” and a “severe blow to the head,” Banks was evaluated at Pomerado 24 Hospital on November 8, 2020 and returned to Villa Rancho Bernardo four hours later that 25 same day because he “possibly and purposely slid off from the [wheelchair] to get the staff attention” to obtain the supervision necessary to smoke a cigarette. Dkt. No. 33-1 at 103. 26
27 5 The day after the Banks’s four-hour hospital evaluation, his sealed medical records show there was “[n]o injury noted. No bump to head noted upon palpitation.” Id. Nothing in the 28 1 3. Banks was not “still hospitalized on December 3, 2020 . . . and . . . not able to 2 attend the ENE scheduled for December 8, 2020. . . .”;6 and 3 4. Banks was not receiving care for any head injury on either December 3, 2020 or 4 December 18, 2020.7 5 B. Taibi Did Not Conduct a Reasonable and Competent Inquiry 6 Having found Taibi misrepresented multiple facts in his written submissions, the 7 Court next evaluates whether to sanction these misrepresentations under Rule 11. In 8 making this determination, the Court considers whether Taibi conducted a “reasonable and 9 competent inquiry.” Estate of Blue, 120 F.3d at 985; see also Nguyen v. Simpson Strong- 10 Tie Co., Inc., No. 19-cv-07901-TSH, 2020 WL 5232564, at *8 (N.D. Cal. Sept. 2, 2020) 11 (“Rule 11 does not carry a bad-faith requirement and ‘Counsel cannot avoid the sting of 12 Rule 11 sanctions by operating under the guise of a pure heart and empty head.’”). In 13 making this determination, the Court examines Taibi’s explanations for the written 14 statements at issue. 15 Taibi offered the following explanations: (1) he knew the statements in his 16 December 3, 2020 and December 17, 2020 declarations (i.e., that Banks could not attend 17 the ENEs because he “was admitted Palomar Hospital [sic] on or about November 4, 2020 18 . . . due to an injury that he received while in the care of Villa Rancho Bernardo Rehab 19 Center”) were false, but they were typographical errors (Dkt. Nos. 52 ¶ 4 [Taibi Decl.], 54 20 at 11–13, 21–22 [3/3/2023 OSC Hr’g Tr.]); (2) he received inaccurate information from 21
22 23 medical records suggests any physical attack or blow to the head ever occurred. Id. at 14, 103–06. 24
25 6 Except for his four-hour visit to Pomerado Hospital on November 8, 2020, nothing in the 219 pages of submitted sealed medical records suggests that Banks was ever transferred 26 outside of Villa Rancho Bernardo’s skilled nursing facility during his residency there from 27 October 15, 2020 to January 15, 2021. Dkt. Nos. 33, 33-1.
28 1 third parties that Banks was hospitalized (Dkt. Nos. 52 at 5 [Taibi Decl.], 54 at 14 [3/3/2023 2 OSC Hr’g Tr.]); and (3) “hospitalized” is not necessarily a mischaracterization of an 3 individual residing in a rehabilitation facility (Dkt. Nos. 52 at 5 [Taibi Decl.], 54 at 6–8 4 [3/3/2023 OSC Hr’g Tr.]). 5 None of these explanations credibly establish Taibi conducted a reasonable and 6 competent inquiry into Banks’s condition and availability to participate in the Court’s 7 ENEs. 8 First, the statements in Taibi’s December 3, 2020 and December 17, 2020 ex parte 9 motions plainly are not typographical errors. The dictionary definition (and common 10 understanding) of a typographical error is “an error in printed or typewritten matter 11 resulting from striking the improper key of a keyboard, from mechanical failure, or the 12 like.” DICTIONARY.COM, https://www.dictionary.com/browse/typographical-error (last 13 accessed June 14, 2023). Nothing in the statements at issue is fairly construable as a 14 typographical error. The Court also finds this explanation implausible because Taibi 15 repeated this same representation two weeks later in his December 17, 2020 ex parte 16 motion. 17 Taibi’s second explanation (i.e., that he received inaccurate information from third 18 parties) further undermines the “typographical error” explanation. William Carter, Taibi’s 19 ADA compliance expert, is the third-party source Taibi identifies in connection with this 20 most recent OSC. See Dkt. No. 50. Carter declared he told Taibi that Banks could not 21 participate in the ENE because Banks was hospitalized in critical condition. Id. at 3. If this 22 were true, then Taibi’s statements in his December 3, 2020 and December 17, 2020 ex 23 parte motions accurately report what Carter told him and, therefore, were not typographical 24 errors. Further, at the March 3, 2023 OSC hearing, Taibi admitted he knew Banks wasn’t 25 hospitalized when he made statements to the contrary in his December 3, 2020 and 26 December 17, 2020 ex parte motions. Dkt. No. 54 at 11. 27 Taibi’s claim that he relied on information provided by Carter is also inconsistent 28 with Taibi’s statements at the April 19, 2021 OSC hearing. At that time, Taibi identified 1 certain “couriers and friends” and family members as the third parties who informed him 2 about Banks’s condition. Dkt. No. 31 at 11 (4/19/2021 OSC Hr’g Tr.). Taibi did not 3 identify Carter as one of those sources. Id. 4 Finally, the Court rejects Taibi’s claim that the statements in his December 15, 2020 5 Supplemental Brief (Dkt. No. 12) and February 24, 2021 Declaration (Dkt. No. 19) (i.e., 6 that Banks was “hospitalized to due [sic] a head injury” on November 9, 2020, and was 7 “still hospitalized” as of December 3, 2020) were arguably truthful because “it could 8 reasonably be understood by a lay person that someone [in a skilled nursing facility] is still 9 ‘hospitalized’ . . . .” Dkt. No. 52 at 5. The dictionary definition and common understanding 10 of “hospitalized,” is “to place in a hospital for medical care or observation.” 11 DICTIONARY.COM, https://www.dictionary.com/browse/hospitalize (last accessed June 14, 12 2023). Consistent with this common understanding, in the next paragraph of his 13 declaration, Taibi described his representation that Banks was “hospitalized” as a 14 “mischaracterization” (i.e., because Banks was in a rehabilitation facility, not a hospital). 15 Dkt. No. 52 at 5. 16 The distinction between “hospitalized” and “in a rehabilitation facility” is material 17 to the Court. If Taibi had disclosed that Banks was in a rehabilitation facility (as opposed 18 to “hospitalized”), then, as discussed below, rather than delay the ENE (which, under the 19 Court’s Local Rules, must take place within 45 days of the answer, see Civ. L.R. 16.1.c.1), 20 the Court would have obtained Banks’s remote participation in the ENE. But Taibi instead 21 repeatedly (and falsely) led the Court to believe Banks was hospitalized and recovering 22 from a severe injury, which representations the Court accepted until the medical records 23 established otherwise. 24 In sum, the Court finds Taibi’s explanations for his written motions and submissions 25 to obtain continuances of and excuse Banks’s appearances at those ENEs are internally 26 inconsistent, implausible, and belied by the record. Taibi’s explanations do not credibly 27 establish he conducted a “reasonable inquiry” to ensure these written motions and 28 1 submissions were “well grounded in fact.” Islamic Shura Council of S. California, 757 2 F.3d at 872. The Court, therefore, concludes Rule 11 sanctions are appropriate. 3 IV. TAIBI’S FAILURE TO PRODUCE BANKS AT THE DECEMBER 18, 4 2020 ENE IS SANCTIONABLE UNDER RULE 16(f) 5 Judge Burns also ordered Taibi to show cause why sanctions shouldn’t be imposed 6 under Federal Rule of Civil Procedure 16(f) for his failure to produce Banks at the 7 December 18 ENE via telephone or videoconference. Dkt. No. 45 at 4. 8 Taibi’s Amended Declaration explained his “understanding was that Mr. Banks was 9 not able to attend the ENE on December 18, 2020, and that he was not able to access other 10 means by which to attend on that day and/or not physically and/or mentally able to do so, 11 which was confirmed through Mr. Banks’ testimony at the OSC.” Dkt. No. 52 ¶13. 12 The Court rejects Taibi’s claim that Banks couldn’t participate in the ENE from the 13 rehabilitation facility. The Court scheduled the ENEs remotely via the Zoom platform, 14 which allows participation by videoconference or telephone. Dkt. Nos. 5, 7, 10. Banks’s 15 statements at the April 19, 2021 OSC hearing establish he could have participated in the 16 ENEs remotely from the rehabilitation facility. 17 At the April 19, 2021 OSC hearing, Banks stated he was in indirect communication 18 with Taibi on case-related matters from the rehabilitation facility. Dkt. No. 31 at 10 19 (4/19/2021 OSC Hr’g Tr.). Banks also confirmed he was telephonically discussing case- 20 related matters with others from the rehabilitation facility. Id. at 13 (“But we would keep 21 in contact by phone, you know, sometimes. And he [referring to his friend, Jerry Jackson] 22 would let me know what was going on. And I had went through a couple of other cases 23 that I informed him of, and I gave him details and stuff.”). If Banks was discussing case- 24 related matters with others from the rehabilitation facility, then he could have discussed his 25 case with the Court remotely from the rehabilitation facility. 26 Confirming this, the Court asked Banks whether he could have participated in a 27 telephonic conference from the rehabilitation facility and he responded affirmatively: 28 1 THE COURT: Mr. Banks, would you have been able to participate in a conference such as this by telephone from the facility back 2 in December, January, and February? 3 MR. BANKS: Yeah, I would – I would talk to my friend about the 4 situation, and he would relay everything. . . . 5 Id. at 15. 6 Following this testimony, however, Banks backtracked upon prompting by 7 Taibi: 8 MR. TAIBI: What the Court is asking you is whether or not you would 9 have been able to attend via phone or Internet, like this, to 10 these ENE conferences.
11 MR. BANKS: No, I wasn’t exactly able but – 12 MR. TAIBI: I think, in Mr. Banks’s condition, he wasn’t really able to 13 participate in an ENE. 14 I think his conversations with others was very limited too. 15 It’s not like he was talking to his friend very often. So–
16 THE COURT: What is – 17 MR. TAIBI: I don’t believe you had internet service in the – in the 18 facility. 19 MR. BANKS: No. And they wouldn’t have allowed that. 20
21 THE COURT: I understand that video may have been difficult, but I’m asking about phone. 22
23 But what is it about your condition, Mr. Banks, that would have – that would – where you were being housed, that 24 would have prohibited you from participating by phone? 25 MR. BANKS: I was – I was under strict care. . . . I couldn’t, uh, do certain 26 things. I wasn’t able. 27 MR. TAIBI: You were on medication. 28 1 Id. at 15–16. 2 The Court finds these subsequent coached denials unpersuasive and not credible. 3 Banks confirmed that, while at the rehabilitation facility, he was conversing with third 4 parties about case-related matters, and he was doing so telephonically. And, until Taibi 5 intervened, Banks confirmed he could have participated in a telephonic conference from 6 the rehabilitation facility. These statements establish Banks could have participated in the 7 ENE remotely by telephone or videoconference. The Court, therefore, finds Taibi violated 8 Rule 16(f) by failing to secure Banks’s remote participation at the December 18, 2020 9 ENE. 10 V. THE COURT RECOMMENDS SANCTIONING TAIBI $500 UNDER 11 RULE 11 AND $500 UNDER RULE 16 12 The Court recommends sanctioning Taibi $500 under Rule 11 for the false 13 statements identified above, and sanctioning Taibi $500 under Rule 16 for failing to 14 produce Banks at the December 18, 2020 ENE. Although, after giving Taibi notice and a 15 hearing, the Court now makes an additional express finding that Taibi misrepresented facts 16 to the Court, these recommended sanctions reinstate the monetary sanction the Court 17 originally imposed in its June 4, 2021 Order. Dkt. No. 32. The Court finds this is the 18 minimum amount necessary to redress the serious conduct at issue here, especially 19 considering Taibi’s prior history of reprimands and sanctions in this district.8 Fed. R. Civ. 20 P. 11(c)(4) (“A sanction imposed under this rule must be limited to what suffices to deter 21 repetition of the conduct or comparable conduct by others similarly situated.”). 22 VI. CONCLUSION 23 For the foregoing reasons, IT IS HEREBY RECOMMENDED the Court issue an 24 Order: (1) approving and adopting this Report and Recommendation; (2) sanctioning Taibi 25 $500 under Rule 11 for misrepresenting facts in his written motions and submissions; and 26
27 8 As detailed in its June 4, 2021 Order, this Court has sanctioned and reprimanded Taibi on 28 1 || (3) sanctioning Taibi $500 under Rule 16 for failing to produce Banks at the December 18, 2 2020 ENE. 3 IT IS ORDERED that no later than June 28, 2023, Taibi, or any party, may file 4 || written objections with the Court and serve a copy on all parties. The document should be 5 ||captioned “Objections to Report and Recommendation.” The failure to file objections 6 || within the specified time may waive the right to raise those objections on appeal of the 7 Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 8 1153, 1156 (9th Cir. 1991). 9 IT IS SO ORDERED. 10 ||Dated: June 14, 2023 — i Dando oa 12 Honorable Daniel E. Butcher United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28