Banks v. Whambo! Enter., LLC, 2022 U.S. App. LEXIS 31400, 2022 WL 16918023 (9th Cir. Nov. 14, 2022) (unpublished)
*1 Attorney Michael Taibi appeals the district court’s imposition of two Federal Rule of Civil Procedure 16(f) monetary sanctions payable to the court: one for $500 and one for $1,000. We review the imposition of sanctions for abuse of discretion, Pac. Harbor Cap., Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1117 (9th Cir. 2000), but review due process claims de novo, Lasar v. Ford Motor Co., 399 F.3d 1101, 1109 (9th Cir. 2005). We have jurisdiction under 28 U.S.C. § 1291, and affirm in part, vacate in part, and remand.
Taibi’s reliance on Goodyear Tire & Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), is misplaced. That case explained that a court may use its inherent authority to impose punitive sanctions only by following the procedures applicable to criminal cases. Id. at 1186. Although the $500 sanction was payable to the court, the court did not sanction Taibi under its inherent authority, but instead did so under Rule 16(f)(1). Rule 16(f)(1) sanctions, unlike sanctions imposed under a court’s inherent authority, require only “notice and an opportunity to be heard.” Ayers v. Richmond, 895 F.2d 1267, 1270 (9th Cir. 1990). The sanction therefore did not require the full panoply of procedural protections applicable to a criminal contempt proceeding.
Taibi received ample notice and an opportunity to be heard. The district court issued an Order to Show Cause (“OSC”) that put Taibi on notice that it was considering sanctions for his failure “to timely participate” in the court-ordered meet and confers. Taibi also knew that the court was considering monetary sanctions because it had requested a summary of opposing counsel’s costs, which exceeded $500. Taibi had the opportunity to be heard and to present evidence at the later OSC hearing.1
*2 After notice and an opportunity to be heard, if the district court still wishes to sanction Taibi for his purported lack of candor, the court should indicate under what authority it is proceeding. Rule 16(f) does not authorize sanctions for lack of candor, but Rule 11, for example, would.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Not Reported in Fed. Rptr., 2022 WL 16918023
|The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation.
|This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
|Orders by other district judges imposing sanctions on Taibi for similar acts were a proper subject of judicial notice. Fed. R. Evid. 201; see Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). And, in any event, as the court explained, the sanctions it imposed “redress[ed] only the conduct that occurred in this case.”
|Taibi also challenges the district court’s Local Civil Rule 2.2e referral to the Standing Committee on Discipline. We do not vacate the referral because, even in the absence of the $1,000 sanction, the original reason for the referral (Taibi’s filing and settlement of lawsuits while he and Mr. Banks were purportedly not in communication), as well as the $500 sanction and previous sanctions imposed on Taibi, provide independent bases for the referral.
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|© 2022 Thomson Reuters. No claim to original U.S. Government Works.
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