AUTUMN D. SPAETH, Magistrate Judge.
This Certification relates to the November 12, 2019 Court-ordered settlement conference before the undersigned Magistrate Judge. Because the undersigned believes Defendants did not participate in the settlement conference in good faith and failed to comply with court rules and orders, pursuant to 28 U.S.C. § 636(e), I recommend to the presiding District Judge the following issues: (a) whether Defendant William (Bill) Redfern should be held in contempt or sanctioned; (b) whether his counsel, Al Mohajerian, should be held in contempt or sanctioned; and (c) what sanctions should be imposed, if any.
It is the opinion of the undersigned Magistrate Judge that Mr. Redfern was not forthright with the Court in his repeated representations under penalty of perjury that he was unable to attend the November 12, 2019 settlement conference in person due to his doctor's advice not to fly and that he was confined to driving in his residential area in Florida. Given that Mr. Redfern has been unable or unwilling to identify the doctor that so advised him, admitted to flying both before and after the settlement conference, and admitted to participating in a half triathlon two days prior to the settlement conference, it is also my opinion that Defendants did not participate in the settlement conference in good faith.
It is further my opinion that Mr. Mohajerian intentionally failed to obey court orders when he did not address specifically delineated issues ordered by the Court and when he failed to appear at the December 18, 2019 Order to Show Cause ("OSC") hearing, instead sending a colleague to the hearing.
Defendants have been ordered to show cause why they should not be held in contempt and/or sanctioned for certain conduct related to the November 12, 2019 settlement conference. Civil contempt "consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply. The contempt need not be willful; however, a person should not be held in contempt if his action appears to be based on a good faith and reasonable interpretation of the court's order."
28 U.S.C. § 636(e) sets forth the power of a magistrate judge to exercise contempt authority. Where an act constitutes a civil contempt,
28 U.S.C. § 636(e)(6)(B)(iii);
Federal courts have an inherent power to impose appropriate sanctions where conduct disrupts the judicial process.
Further, as to penalty of perjury, "[w]hoever under oath (or in any declaration, . . .) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined under [Title 18] or imprisoned not more than five years, or both." 18 U.S.C. § 1623(a).
In accordance with 28 U.S.C. § 636(e), undersigned Magistrate Judge Autumn D. Spaeth hereby certifies the following facts, which are based on the Magistrate Judge's personal knowledge, representations of the parties and their counsel, and testimony given before the undersigned Magistrate Judge at the OSC hearing held on December 18, 2019:
1. On October 1, 2019, District Judge Cormac J. Carney issued an order denying both parties' motions for summary judgment and directing "the parties to appear before Magistrate Judge Spaeth within FORTY-FIVE DAYS from the date of this order for settlement proceedings." [Dkt. No. 59, p. 13]. Of particular import for these proceedings, in that order, Judge Carney stated,
[
2. On October 8, 2019, Mr. Mohajerian emailed the Magistrate Judge's chambers, stating, "We seek relief from the magistrate judge for my client's attendance at the mediation by way of telephone. . . . The client resides in the State of Florida and is unable to attend the mediation in person." [Dkt. No. 65, Attachment 2, p. 2].
3. On or about October 9, 2019, Judge Spaeth's Courtroom Deputy advised Mr. Mohajerian that personal appearances were required for the settlement conference. [
4. On October 24, 2019, Defendants filed an Ex Parte Application for Order Granting William Redfern on Behalf of Defendants to Appear at the Mediation by Telephone ("Application"). [Dkt. No. 65]. The Application explains that Mr. Redfern not only resides out of state, but also cannot fly due to medical advice regarding a health condition. The Application states, in part,
[
5. In a declaration accompanying the Application, Defendant Mr. Redfern declared under penalty of perjury,
[
6. In a declaration accompanying the Application, Defendants' counsel, Mr. Mohajerian, declared under penalty of perjury,
[
7. On October 25, 2019, the undersigned Magistrate Judge issued an Order Re: Settlement Conference. [Dkt. No. 66]. The order states, in part,
[
8. On October 25, 2019, during a pre-settlement telephone conference call, based upon the representations in the Application and after confirming that Mr. Mohajerian would have full settlement authority, the Magistrate Judge granted Defendants' Application. [Dkt. No. 67].
9. On November 10, 2019, two days before the settlement conference, Mr. Redfern participated in the Miami Man Half Triathlon. [Dkt. No. 68, Attachments A, B, and C].
10. On November 12, 2019, the Magistrate Judge held a settlement conference. [Dkt. No. 69]. Plaintiffs, their counsel, and Defendants' counsel, Mr. Mohajerian, were in attendance. Defendant Mr. Redfern made a brief appearance telephonically at the beginning of the settlement conference. The Magistrate Judge separately conferred with Plaintiffs and their counsel, and then with Defendants' counsel. The Magistrate Judge terminated the settlement conference after it became clear that settlement efforts would not be fruitful because Defendants' counsel had only limited monetary settlement authority.
11. On November 15, 2019, the Magistrate Judge issued an Order to Show Cause Re: Contempt of Court and Sanctions ("OSC"). [Dkt. No. 68]. The OSC states, in part,
[
[
12. On November 22, 2019, Mr. Redfern filed a declaration in response to the OSC. [Dkt. No. 73]. Mr. Redfern declared, in part, as follows:
[
13. In addition, in response to the OSC, Mr. Mohajerian declared, "Clearly based on [Mr. Redfern's] declaration, his medical condition is relevant to his inability to fly. Apparently, Mr. Redfern was diagnosed with pulmonary edema. With this condition, a pulmonary embolism is an increased danger." [Dkt. No. 73, Attachment 1, p. 2]. Mr. Mohajerian attached as an exhibit a printout titled, "Pulmonary Disease and Air Travel," from the website www.tripprep.com.
14. Defendants' responses to the OSC did not directly address and respond to all of the issues requiring a response that were set forth in the OSC.
15. On December 4, 2019, the Court ordered Mr. Redfern to file a declaration, written statement, or letter from his physician to support the representations made in Mr. Redfern's November 22, 2019 declaration. [Dkt. No. 74].
16. On December 12, 2019, Mr. Redfern filed a letter from Dr. Eli Meyer Friedman, Medical Director of Sports Cardiology at Memorial Cardiac and Vascular Institute in Hollywood, Florida. [Dkt. No. 75]. The letter is dated December 11, 2019 and references an office visit on that date. [
17. Defendants' response to the December 4, 2019 order did not support all of the representations Mr. Redfern made to the Court.
18. On December 13, 2019, the Court ordered Mr. Redfern to produce Dr. Friedman for further questioning at the OSC hearing on December 18, 2019. [Dkt. No. 76].
19. On December 17, 2019, the day before the OSC hearing, Defendants filed Ex Parte Applications for Mr. Redfern and Dr. Friedman to appear at the hearing telephonically. [Dkt. Nos. 77, 78]. The Court granted the applications. [Dkt. Nos. 79, 80].
20. Immediately after, on December 17, 2019, Defendants filed an Ex Parte Application to Continue Order to Show Cause Hearing on Wednesday, December 18, 2019 from 10:00am to 2:00pm based upon the availability of Dr. Friedman. [Dkt. No. 81]. With the application, Defendants' counsel filed a declaration in which he stated that on December 16, 2019 he learned of the time for the OSC hearing and that he is required to appear in a different matter in Los Angeles at the same time. [
21. On December 18, 2019, the Court held the hearing on the OSC Re: Contempt of Court and Sanctions. [Dkt. No. 85]. Plaintiffs' counsel appeared. Mr. Mohajerian did not appear. However, Ann Anooshian, an associate of Mr. Mohajerian, appeared on behalf of Defendants. Mr. Redfern and Dr. Friedman appeared telephonically and provided testimony.
22. During the December 18, 2019 OSC hearing, Mr. Redfern testified, in relevant part, to the following:
a. Mr. Redfern "was advised that it was probably not a great idea to — fly[] five or six hours to the coast." [Dkt. No. 86, Transcript, p. 5].
b. Dr. Friedman was not the physician that advised Mr. Redfern not to fly, prior to the November 12, 2019 settlement conference, whom he referred to in prior declarations.
c. When asked to name his physician who advised him not to fly prior to November 12, 2019, Mr. Redfern failed to provide any specific name. After repeated questioning, Mr. Redfern testified, "One was a cardio emergency room nurse that was a friend of mine." [
d. Mr. Redfern testified that the nurse's name is Jocelyn Lummis. [
e. After Plaintiffs' counsel informed the Court that Ms. Lummis is an attorney in Florida who represents Mr. Redfern, Mr. Redfern admitted that Ms. Lummis is also an attorney in Florida who previously represented him. [
f. When asked who gave him advice that "exercise including triathlons within reason is fine and, in fact, encouraged," [Dkt. No. 73, p. 3], Mr. Redfern testified, "I'm not sure offhand, Your Honor. I talked to — any number of medical people. So, I'm sure I heard it somewhere along the line." [Dkt. No. 86, Transcript, p. 10].
g. When asked, "When was the last time you flew?," Mr. Redfern testified, "I did three different flights up and down the East Coast to New England between June and November before being cautioned — otherwise learning not to — and certainly no long flights over — over two hours." [
h. Mr. Redfern testified that he last flew in November, for Thanksgiving, to Portland, Maine. [
i. In 2019, Thanksgiving occurred on Thursday, November 28, 2019. The settlement conference was held November 12, 2019.
j. Mr. Redfern testified that he participated in the Miami Man Half Triathlon on November 10, 2019.
k. Mr. Redfern testified that he participated in a triathlon on December 15, 2019.
l. Mr. Redfern testified that he suffered a pulmonary edema episode on December 15, 2019.
m. When asked how he envisioned the settlement conference would proceed, Mr. Redfern testified, "This [case] has been, you know, again in my opinion nothing more than a shake-down from the beginning. And they continue to drag it out and drag it out. And it's similar to this matter that we're talking about today. And they can carry on and carry on and waste everybody's time in legal fees as long as they wish. And more power to them. That's great." [
23. During the December 18, 2019 OSC hearing, Dr. Eli Friedman testified, in relevant part, to the following:
a. Dr. Friedman is a sports and exercise cardiologist. [Dkt. No. 86, Transcript, p. 24].
b. He met Mr. Redfern for the first time on December 11, 2019, one week prior. [
c. Because Mr. Redfern was already exercising, he advised him that continuing to exercise was acceptable. [
d. Referring to his December 11, 2019 letter, Dr. Friedman stated, "I would prefer that [Mr. Redfern] not travel just because the diagnosis wasn't a hundred percent yet." [
e. Dr. Friedman met with Mr. Redfern again on December 16, 2019 after Mr. Redfern suffered a pulmonary edema episode on December 15, 2019. [
24. On December 17, 2019, the day before the OSC hearing, Defendants filed an Ex Parte Application to Continue Order to Show Cause Hearing on Wednesday, December 18, 2019 from 10:00am to 2:00pm based upon the availability of Dr. Friedman. [Dkt. No. 81]. With the application, Defendants' counsel filed a declaration in which he stated that on December 16, 2019 he learned of the time for the OSC hearing and that he is required to appear in a different matter in Los Angeles at the same time. [
25. Mr. Mohajerian did not appear at the OSC hearing as ordered.
26. Ms. Anooshian, a colleague of Mr. Mohajerian, appeared and represented to the Court the following:
a. "I'm familiar with this case. And I'm familiar with the relationship we have with our client. And I'm usually CCed on most communications." [Dkt. No. 86, Transcript, p. 29].
b. "Mr. Mohajerian was simply relaying what he was told by the client. And we had no reason to think otherwise." [
c. Ms. Anooshian stated that she was involved in Mr. Redfern's request to appear telephonically. [
d. Ms. Anooshian stated that she reviewed the OSC with its exhibits. [
e. "I helped to draft the declarations and put those exhibits together. So, I could authenticate them probably. . . We have no reason to not authenticate the [OSC Attachments]." [
27. On January 6, 2020, Defendants filed a declaration by Jocelyn Lummis, in which she declared, in relevant part, under penalty of perjury:
a. "I have been a personal friend of Mr. Redfern for many years." [Dkt. No. 88, p. 2].
b. "I am licensed to practice law in the state of Florida and have represented Mr. Redfern in prior matters." [
c. "I am also a registered nurse in the state of Florida. In my 23 year nursing career I have been a flight RN, a trauma RN, ER nurse and currently practice in a high acuity heart surgical intensive care unit." [
d. On or around May 6, 2019, during a personal conversation concerning Mr. Redfern's pulmonary condition, she "advised him that he should not fly until medically cleared by a physician." [
e. "Since May [Mr. Redfern and I] have discussed this medical issue on a personal level on multiple occasions. . . . I mentioned to him that I was not a physician and was concerned as a friend." [
f. "All of the discussions with Mr. Redfern were that of two friends talking. Medical advice was never proffered, although I expressed my opinion and concerns as a registered nurse." [
28. On January 7, 2020, Plaintiffs' counsel filed a declaration, requesting sanctions for time spent related to the settlement conference and OSC Re: Contempt of Court and Sanctions, for 12.3 hours at a rate of $475 per hour, totaling $5,842.50. [Dkt. No. 90].
Based upon the events, briefs, and testimony provided by the parties, the undersigned Magistrate Judges concludes as follows:
29. The record supports Mr. Redfern's representations that he has a pulmonary edema condition.
30. The record does not support Mr. Redfern's repeated representations to the Court that he was not able to personally attend the November 12, 2019 court-ordered settlement conference because he was heeding his doctor's advice not to travel and to be confined to driving near his home.
31. The record establishes that Mr. Redfern voluntarily flew both before and after the settlement conference, which contradicts his earlier representations to the Court.
32. There is no evidence that Mr. Redfern obtained advice from his doctor that he should not fly and was confined to driving near his home prior to the November 12, 2019 settlement conference.
33. Mr. Redfern's stated reason for not personally appearing at the settlement conference was, at best, only part truth—that Mr. Redfern, in the past, had a pulmonary edema episode. However, Mr. Redfern believes the lawsuit is a "waste of time" and simply did not want to personally appear for the settlement conference.
34. Defendants did not participate in the settlement conference in good faith and needlessly increased the cost of litigation and burden on the Court.
35. Mr. Redfern and his attorney's declarations and filings [Dkt. No. 73] in response to the November 15, 2019 OSC do not address any of the required six specific issues. As a result, the Court twice ordered further briefing.
36. Dr. Friedman's letter, filed by Mr. Redfern, does not directly respond to the Court's December 4, 2019 order, since Dr. Friedman was not the physician who advised Mr. Redfern not to fly prior to the November 12, 2019 settlement conference.
37. Mr. Mohajerian and Defendants repeatedly failed to obey court orders and needlessly increased the cost of litigation and burden on the Court by filing briefs and declarations that did not directly respond to the court's orders.
38. Mr. Mohajerian failed to obey court orders when he did not appear at the December 18, 2019 hearing on the OSC Re: Contempt of Court and Sanctions. He received sufficient notice of the hearing date and of the order to attend when the Magistrate Judge issued the OSC on November 15, 2019 and denied Defendants' request to continue the OSC hearing on December 17, 2019.
39. Plaintiffs incurred $5,842.50 in fees and costs as a result of Defendants' and Mr. Mohajerian's actions in connection with the settlement conference and OSC.
IT IS HEREBY ORDERED that Defendant William Redfern and Defendants' counsel, Al Mohajerian, shall appear before the Honorable Cormac J. Carney—at a time and place to be set by him in a separate Order—and then and there show cause why they should not be adjudged in contempt or sanctioned by reason of the facts certified herein.
