Holmes v. Estock

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 CHARLES HOLMES, Case No. 16-cv-2458-MMA (BLM) 11 Plaintiff, NOTICE AND ORDER 12 v. DISCHARGING OSC AND SETTING DEADLINE TO FILE MOTION TO 13 ESTOCK, et al., WITHDRAW OR SUBSTITUTE 14 Defendants. COUNSEL [15] 16 On December 20, 2021, the Court ordered Plaintiff’s counsel, Mr. Brian Vogel, to 17 show cause why the Court should not issue sanctions for his failure to prosecute the case 18 and comply with various Court orders. Doc. No. 157 (the “OSC”). In the OSC, the 19 Court detailed Mr. Vogel’s history of noncompliance, ultimately culminating in his 20 failure to file pretrial disclosures. Id. On January 10, 2022, Mr. Vogel filed a declaration 21 responding to the OSC. Doc. No. 158. 22 According to Mr. Vogel, he contracted COVID-19 and was unable to meet the 23 deadlines. Id. at 2. Mr. Vogel explains that he intends to “file a second motion to be 24 relieved as counsel as soon as [he] can find suitable counsel for Mr. Holmes.”1 Id. at 3. [26] 27 1 Mr. Vogel has never previously sought to be relieved as counsel. See Docket. This, despite the Court’s implicit direction to do so, or otherwise state his intent to actively represent his client. Doc. [28] 1 ||Mr. Vogel also “request[s] that the court consider a motion to modify the scheduling 2 || order in order to insure [sic] that Mr. Holmes’ case gets heard.” Jd. 3 Based upon Mr. Vogel’s representations, the Court DISCHARGES the OSC. The 4 ||Court DIRECTS Mr. Vogel to file, no later than March 11, 2022, either: (1) a motion to 5 || substitute counsel; or (2) a motion to withdraw as counsel. If the latter, the Court will 6 sua sponte consider whether this case is appropriate for referral to its Pro Bono 7 Panel for potential pro bono representation pursuant to General Order 596. Should 8 ||Mr. Vogel fail to meet this deadline, the Court will impose a sanction of $100.00 per day 9 Mr. Vogel complies with this Order and purges himself of the contempt by filing 10 a motion. See United States v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999) (holding 11 a “per diem fine imposed for each day a contemnor fails to comply with an 12 || affirmative court order” is a “paradigmatic civil contempt sanction[]’’); NERB 13 || v. Ironworkers Local 433, 169 F.3d 1217 , 1222 (9th Cir. 1999) (describing per diem fines 14 a method of “coercing future compliance” with court orders); see also In re Rubin, 172 15 || F.3d 876 (9th Cir. 1999) (affirming $100 per day contempt fine); Jn re E. W. Const. Co., 16 |[Jnc., 21 F.3d 1112 (9th Cir. 1994) (same); Rich v. Kirkland, No. CV 11-4272-JLS (SPx), 17 U.S. Dist. LEXIS 5657 , at *12 (C.D. Cal. Jan. 15, 2016) (ordering $200 per day 18 |}contempt sanction); Facebook, Inc. v. Power Ventures, Inc., No. 08-CV-05780-LHK, 19 U.S. Dist. LEXIS 125541 , at *48 (N.D. Cal. Aug. 8, 2017) (ordering $100 per day 20 || contempt sanction). 21 Subsequent to the withdrawal or substitution of trial counsel, the Court will issue a 22 scheduling order setting forth all remaining pretrial deadlines and hearings. 23 IT IS SO ORDERED. 24 Dated: January 14, 2022 25 ll fl Vu -£ ol Lo bo 26 HON. MICHAEL M. ANELLO 07 United States District Judge [28] -2- 16-cv-2458-MMA (BLM)