Michael Blemaster v. Horatiu Sabo

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2020
• Docket: 18-16200
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL BLEMASTER, an individual as No. 18-16200 successor to RCU, Inc., an Arizona corporation successor in interest RCU D.C. No. 2:16-cv-04557-JWS Incorporated,

Plaintiff-Appellee, MEMORANDUM*

v.

HORATIU CORNELIUS SABO, an individual; et al.,

Defendants,

FLORIN VALERIU IVAN, Counsel for Defendants; et al.,

Movants-Appellants.

Appeal from the United States District Court for the District of Arizona John W. Sedwick, District Judge, Presiding

Argued and Submitted March 2, 2020 Phoenix, Arizona

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: SILER,** CLIFTON, and BYBEE, Circuit Judges.

Florin V. Ivan and the law firm of Ivan & Kilmark, PLC (“Appellants”)

appeal the district court’s imposition of discovery sanctions and its civil contempt

holding. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1

We review for abuse of discretion a trial court’s imposition of discovery

sanctions, Ingenco Holdings, LLC v. Ace Am. Ins. Co., 921 F.3d 803, 808 (9th Cir.

2019), as well as its civil contempt holding. Richmark Corp. v. Timber Falling

Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). A district court abuses its

discretion when it bases its decision “on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Holgate v. Baldwin, 425 F.3d 671,

675 (9th Cir. 2005).

Appellants, counsel for the Sabos in the underlying lawsuit, were sanctioned

pursuant to FRCP 26(g) for providing several nonresponsive objections to

Appellee’s discovery requests. Appellants refused to comply with the sanctions,

and the court held them in civil contempt. Appellants now argue the district court

violated their due process rights by imposing the sanctions and civil contempt

** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 1 Because the parties are familiar with the facts, we recite only those necessary to resolve the issues on appeal.

2 18-16200 holding without a hearing.

The district court properly found that Appellants’ arguments regarding the

court’s initial sanctioning order were waived, as Appellants took several months to

present their objections. See LRCiv 7.2(g)(2). Appellants could have contested

the merits of the sanctions when they were originally imposed—instead, they

argued only the amount of the fee to be collected. Accordingly, the court properly

dismissed Appellants’ motion for reconsideration for failure to timely object when

sanctions were originally imposed. Regardless, Appellants’ due process arguments

fail on the merits. See infra.

Appellants were served broad discovery requests that sought merely the

factual basis underlying their clients’ defenses and counterclaims. Yet the

discovery responses at issue contained little substantive information—nearly every

interrogatory, request for production, and request for admission was objected to.

The court found such “nonsensical boilerplate objection[s]” to be in violation of

FRCP 26(g), which required it to issue sanctions. See Fed. R. Civ. P. 26 Advisory

Committee's note to 1983 amendment. Nevertheless, Appellants argue their due

process rights were violated because the court imposed sanctions sua sponte before

affording them a hearing. To be sure, attorneys are entitled to notice and an

opportunity to be heard when courts impose sanctions to “give an attorney an

opportunity to argue that his actions were an acceptable means of representing his

3 18-16200 client, to present mitigating circumstances, or to apologize to the court for his

conduct.” Lasar v. Ford Motor Co., 399 F.3d 1101, 1110 (9th Cir. 2005). But

“[d]ue process does not, of course, require that the defendant . . . actually have a

hearing on the merits.” Boddie v. Connecticut, 401 U.S. 371, 378 (1971). Indeed,

“[t]he opportunity to brief the issue fully satisfies due process requirements.” Pac.

Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir.

2000). Appellants were afforded opportunities to contest the imposition, nature,

and amount of sanctions. That they chose to address only the proper amount of the

fee imposed does not mean they were denied due process.2

Finally, the district court did not err in holding Appellants in civil contempt.

To hold a party in civil contempt, “the moving party has the burden of showing by

clear and convincing evidence that the [nonmoving party] violated a specific and

definite order of the court.” FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239

(9th Cir. 1999) (quoting Stone v. City and County of San Francisco, 968 F.2d 850,

856 n.9 (9th Cir. 1992)). Appellants latch onto the “specific and definite”

requirement, arguing that the court was unclear as to the date payment was due and

2 Appellants’ reliance on Boddie v. Connecticut, in which a state’s denial of access to the courts by welfare recipients, is inapposite. “[T]he nature of [the protection] varies depending upon the violation, and the type and magnitude of the sanction.” F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1137 (9th Cir. 2001). An attorney’s willful failure to comply with a court’s order is far different from the facts in Boddie.

4 18-16200 as to whom the sanctions were being levied on. Although the court’s initial

sanctioning order might have been clearer, its subsequent orders put Appellants on

notice that the award of attorney’s fees was immediately enforceable against Ivan

and Ivan & Kilmark, PLC.

Given that a specific and definite order was violated, “[t]he burden then

shifts to the contemnors to demonstrate why they were unable to comply.” 3

Affordable Media, 179 F.3d at 1239. Despite numerous warnings, Appellants

argued only why they chose not to reply, rather than asserting that they could not

reply. As such, the district court had no need to hold a hearing. See Peterson v.

Highland Music, Inc., 140 F.3d 1313, 1324 (9th Cir. 1998) (holding that a district

court does not violate due process by failing to hold a hearing when the violation is

not in dispute and the contemnor does not describe any evidence that would be

presented at a hearing).

AFFIRMED.

3 Contempt sanctions are not warranted when a party’s action “appears to be based on a good faith and reasonable interpretation” of the court’s order. Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982).

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