U.S. ex rel. Ellis v. Jing Shu Zheng, 2:16-cv-01447-APG-NJK. (2018)
Court: District Court, D. Nevada
Number: infdco20180920e08
Visitors: 9
Filed: Sep. 18, 2018
Latest Update: Sep. 18, 2018
Summary: Order NANCY J. KOPPE , Magistrate Judge . Pending before the Court is an order to show cause why counterclaimant Zheng should not be sanctioned (up to and including dismissal of her counterclaim) for failing to appear at the settlement conference and for failing to otherwise comply with the order setting the settlement conference. Docket No. 48. Ms. Zheng responded with an unelaborated assertion that she did not receive the Court's order that was mailed to her. Docket No. 50; but see Dock
Summary: Order NANCY J. KOPPE , Magistrate Judge . Pending before the Court is an order to show cause why counterclaimant Zheng should not be sanctioned (up to and including dismissal of her counterclaim) for failing to appear at the settlement conference and for failing to otherwise comply with the order setting the settlement conference. Docket No. 48. Ms. Zheng responded with an unelaborated assertion that she did not receive the Court's order that was mailed to her. Docket No. 50; but see Docke..
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Order
NANCY J. KOPPE, Magistrate Judge.
Pending before the Court is an order to show cause why counterclaimant Zheng should not be sanctioned (up to and including dismissal of her counterclaim) for failing to appear at the settlement conference and for failing to otherwise comply with the order setting the settlement conference. Docket No. 48. Ms. Zheng responded with an unelaborated assertion that she did not receive the Court's order that was mailed to her. Docket No. 50; but see Docket No. 43 (notice of electronic filing showing mailing of order to Ms. Zheng at her address listed on the docket). There is a presumption of receipt of mailed orders, which can only be overcome through the presentation of clear and convincing evidence to the contrary. See, e.g., Fernandez v. Harrington, 2015 WL 11216743, at *2-3 (C.D. Cal. Feb. 24, 2015) (providing extensive citations for this "venerable principle of common law" dating back to the nineteenth century). It is well-settled that a bare denial of receipt fails. See, e.g., id. at *3 (collecting cases).
The Court afforded Ms. Zheng a further opportunity to establish non-receipt of the subject order at an evidentiary hearing. See Docket No. 51; see also Docket No. 53. At the evidentiary hearing, Ms. Zheng provided testimony that was not fully credible and the Court is not persuaded that she did not receive the order setting the settlement conference.
In this instance, the Court nonetheless declines to impose case-dispositive or monetary sanctions, especially given that the parties participated in a settlement conference with the undersigned following the show cause hearing. See Docket No. 54. The Court ADMONISHES Ms. Zheng for her failure to comply with the order to appear for the settlement conference. The Court further CAUTIONS Ms. Zheng that she is required to follow all orders moving forward (including those already issued by Judge Gordon regarding, among other things, the requirement to appear for the calendar call and for trial) and to comply with the rules that govern litigation in this Court. FAILURE TO COMPLY WITH ORDERS OR APPLICABLE RULES MOVING FORWARD MAY RESULT IN THE IMPOSITION OF SANCTIONS, UP TO AND INCLUDING DISMISSAL.
IT IS SO ORDERED.
Source: Leagle