Commercial Litigation and Arbitration

Inherent Power Sanctions for Failure to Comply with Scheduling Order Do Not Require Showing of Bad Faith

From Washburn v. Morgado, 2009 U.S. App. LEXIS 11282 (9th Cir. May 4, 2009):

Here, both parties wrote letters to Judge White informing him that they had been unable to meet the court's pretrial scheduling deadlines. He issued a written order stating that their final pretrial conference was cancelled and, in its place, the court would conduct a status conference. He admonished the parties to consider their failure to follow court rules and be prepared to discuss rescheduling. He gave each side ample time to address the matter during the in-court status conference, after which he found, both orally and in writing, that all attorneys litigating this contentious civil-rights case had (1) failed to follow previously set discovery schedules; (2) engaged in "self-help" and conducted additional discovery outside the court-ordered schedules, without availing themselves of proper assistance from the court; (3) failed to timely file fully compliant pretrial statements, voir dire, jury instructions, stipulated facts, exhibit lists, witness lists, expert witness reports, and motions in limine; and (4) then commenced improper ex-parte communication with the court by submitting letters in lieu of a motion or formal requests for a hearing in violation of the court's standing orders. Judge White provided the attorneys sufficient opportunity to explain their shortcomings and then reevaluated all arguments after the City filed its motion to reconsider. There was no due process violation on this record.

...[T]he City argues that, because the district court imposed sanctions under its inherent powers, it needed to make a finding that the City acted in bad faith. We have repeatedly said that because "inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion," and, therefore, any sanction under this power must be accompanied by a finding of bad faith. Zambrano v. City of Tustin, 885 F.2d 1473, 1478 (9th Cir. 1989) (internal quotation marks and citation omitted). However, we have also noted that sanctions for failure to comply with the Federal Rules of Civil Procedure or a district court's local rules are statutorily grounded and do not require an express bad-faith determination. Id. at 1480; see Fed. R. Civ. P. 16(f)(1)(B) & (C). Instead, "courts have required conduct amounting to recklessness, gross negligence, repeated — although unintentional — flouting of court rules, or willful misconduct before approving the imposition of monetary sanctions under local rules." Zambrano, 885 F.2d at 1480 (footnotes omitted). Because, following its hearing, the district court properly found that the City continually disregarded the case management rules of the court and was grossly negligent in complying with discovery orders, we affirm the imposition of sanctions upon its attorneys.

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