Free Memorandum - District Court of Arizona - Arizona

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Ira M. Schwartz (I.D. No. 010448) Michael A. Cordier (I.D. No. 014378) DeCONCINI McDONALD YETWIN & LACY, P.C. 7310 N. 16th Street, Suite 330 Phoenix, Arizona 85020 Telephone (602) 282-0500 Facsimile (602) 282-0520
Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA

DECONCINI MCDONALD YETWIN & LACY, P.C.

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16th Street, Suite 330 Phoenix, Arizona 85020

Erchonia Medical Inc., et al Plaintiff, v. Miki Smith, et al Defendants.

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Case No.: CIV 02-2036-PHX-MHM Consolidated with CIV 02-2048-PHX-MHM CIV 02-2353-PHX-MHM PLAINTIFF'S MEMORANDUM REGARDING PROPOSED SANCTIONS FOR DEFENDANT MIKI SMITH'S CONTEMPT OF COURT

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Pursuant to the Court's instructions at the hearing held on August, 17, 2007, Plaintiff submits this memorandum regarding its proposed sanctions to be entered against Defendant Miki Smith for his contempt of court. Miki Smith's Actions In Contempt of Court. The Court's order dated June 21, 2007, specifically directed that the parties personally attend the Joint Pretrial Conference on August 13, 2007. There is no dispute that Mr. Smith was advised of that hearing and his need to be personally present at that hearing. Despite this, Miki Smith refused to attend the hearing. Due to Mr. Smith's failure to attend the hearing, the Court set an Order to Show Cause Hearing on August 17, 2007,

Case 2:02-cv-02036-MHM

Document 377

Filed 08/24/2007

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and again, directed Mr. Smith to attend this hearing in person or by telephone. Again, it is undisputed that Mr. Smith received actual notice from his counsel regarding the need to attend this hearing and willfully failed to appear. See Exhibit 3 to Mr. Bueler's Motion for

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Leave to Withdraw as Counsel.
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Not only did Miki Smith fail to attend this hearing, he was fully advised by his
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counsel that the failure to do so would result in his being found in contempt. See the
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Motion to Withdraw as Counsel filed by Gordon Bueler on August 21, 2007 and
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DECONCINI MCDONALD YETWIN & LACY, P.C.

attachments thereto. In response to his counsel, Mr. Smith evidenced his willful contempt
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of this Court by responding to his attorney, "I am here to pay the contempt, how much? I
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have my promissory note right here, how much? See Email from Miki Smith to Gordon
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North 16th Street, Suite 330 Phoenix, Arizona 85020

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Bueler dated August 14 2007, attached hereto as Exhibit A. It is difficult to imagine a more willful act of contempt. Further, Mr. Smith did not attempt in any way to explain or justify his conduct. Based on these two willful acts, the Court found Mr. Smith in contempt and has requested the Plaintiff submit its recommendations as to appropriate sanctions. Plaintiff notes that the Court has broad powers under the Rules of Civil Procedure, the Local Rules of Practice for the United States District Court for the District of Arizona and under its inherent powers to enforce its orders. See Fed.R.Civ.P. 16, 26, 37; Local Rule 83.1. Rule 16 expressly provides the Court with the power to enter all of the sanctions available under Rule 37 in the event of a party's failure to cooperate in pretrial conferences and other pretrial procedures. Fed.R.Civ.P. 16(f); See also Rule 26(f) (Which specifically authorizes the Court to require the parties to attend pretrial conferences in person); Rule 37 (b) (Which provides for sanctions for failure of a party to comply with orders entered pursuant to Rule 26(f)). The sanctions available to the Court under Rule 37 are broad and expressly include the authority to: refuse to allow a party to support or oppose any designated claims or defenses; striking out pleadings or parts of pleadings, or dismissing 2
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the action or proceeding or entering judgment by default. Fed.R.Civ.P. 37(b)(2)(B), (C) and (D). The Local Rules of Practice for this Court, also provide the authority to enter

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serious sanctions for Mr. Smith's brazen failure to comply with this Court's orders. Local
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Rule 83.1(f)(1)(b) provides that the Court may impose sanctions against a party or attorney
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who fails to appear for a pretrial conference after being given notice and a reasonable
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opportunity to be heard. The Local Rules also provide that if the party fails to appear and
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DECONCINI MCDONALD YETWIN & LACY, P.C.

comply with the Court's orders, and such violations are repeated and serious, substantial
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sanctions may be imposed. L.R.Civ. 83.1(f)(3). The sanctions provided are substantially
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similar to those allowed under Fed.R.Civ.P. 37, and specifically permit a judgment to be
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entered against a party as a sanction. Plaintiff acknowledges that under the Local Rules, a judgment against a party may only be entered if the Court finds that there is no adequate alternative remedy, but submit that Mr. Smith's conduct justifies such sanction. Mr. Smith has twice demonstrated his willful defiance of this Court's orders. Based on his conduct and his correspondence to his counsel, Mr. Smith has made it clear both that (1) his counsel has no authority to represent him in this matter nor to make any commitments or representations on his behalf and (2) that nothing this Court does will be effective in making Mr. Smith appear before it or have him participate in the procedures necessary to effectively prepare this case for trial. Under these circumstances, Mr. Smith has demonstrated his contempt for this Court and these proceedings through his unwillingness to participate in any manner in this proceeding. Given these circumstances, Plaintiff submits that this case warrants the

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serious sanctions of the Court striking Mr. Smith's Answer on the remaining counts and entering a judgment by default against him. Tower Ventures Inc. v. City of Westfield, 296 F.3d 43, 46-47 (1st Cir. 2002) (Stating that dismissal should only be granted in extreme circumstance, but every violation of a court order is considered extreme); Spain v. Board of Educ. Of Meridan Community Unit School Dist. No. 101, 214 F.3d 925, 930 (7th Cir. 3
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2000); Goldman Antonetti Ferraiuoli Axtmayer & Hertell v. Medfit Int'l Inc. 982 F.2d 686, 691 (1st Cir. 1993). If the Court declines to enter a judgment by default, then as an alternative, Plaintiff

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submits at a minimum, the Court should disregard Mr. Smith's demand for a jury trial.
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This case was set for a jury trial based on a demand submitted on behalf of the defendants
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in this case, including Mr. Smith. (The other defendants have previously been dismissed
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from this action.) Mr. Smith's failure to cooperate with his counsel has made preparing
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DECONCINI MCDONALD YETWIN & LACY, P.C.

this case for a jury trial nearly impossible. While his counsel has participated to the extent
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possible under the circumstances in the processes necessary to prepare for a jury trial, Mr.
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Smith has not, and his specific revocation of Mr. Bueler's authority precludes him from
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now doing so. This lack of participation made the preparation of the Joint Proposed Pretrial Order difficult. Issues such as Defendant not fully indicating which witnesses he truly intends to call at trial, what their testimony is likely to be, or whether they will be appearing personally are just a few examples. In addition, sections of the Joint Pretrial Order appear to have been completed with only the input of Mr. Smith's counsel, whose authority is questionable at this stage. Mr. Bueler participated in the hearing on August 13, where the Joint Pretrial Order was addressed, but at that time advised the Court that Mr. Smith had directed him to no longer represent him. Similarly, Mr. Bueler, at the Court's direction, participated in preparing a Joint Statement of the Case to be read to the jury, but again, after being instructed by Mr. Smith that Mr. Bueler no longer represented him. As such, Mr. Smith has clearly refused to participate in the process necessary to prepare this case for trial, let alone a jury trial. Further, without Mr. Smith's participation, (and Mr. Smith has indicated he will not participate) it will be difficult, if not impossible to settle jury instructions, verdict forms and the like. Mr. Smith has also indicated that he will not be attending trial in this matter. While Mr. Smith is not required to attend the trial, in his absence, it is highly likely that a 4
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jury will be unnecessary. It will be a significant waste of both the Court's time and the jury's time to go through the trouble and expense of seating a jury if Mr. Smith will not be present at trial. To waste this Court's time in selecting and seating a jury is a disservice to

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the concept of justice and a violation of Rule 1 of the Federal Rules of Civil Procedure,
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which provides for a just, speedy and inexpensive trial of the matters before the Court.
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Fed.R.Civ.P. 1.
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Plaintiff notes that, in addition to the Court's authority to strike pleadings as noted
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in the sources cited above, the striking of a request for a jury trial is appropriate in cases of
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this type. See In Re 1208 Inc., 188 F. Supp. 664, 666 (D.C. Pa. 1960). Further, the
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striking of the jury trial demand relates directly to the harm caused by Mr. Smith's failure
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to participate in these proceedings. His failure to participate in the drafting of the pretrial procedures necessary to effectively conduct a jury trial warrants this sanction at a minimum. Id. For the reasons set forth above, Plaintiff requests that Miki Smith's Answer be stricken and judgment against him be entered by default. In the alternative, Miki Smith's demand for a jury trial should be stricken, and this matter should proceed as a bench trial. Dated this 24th day of August, 2007. DeCONCINI McDONALD YETWIN & LACY

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__________ By __s/ Ira M. Schwartz Ira M. Schwartz Michael A. Cordier 7310 N. 16th St., Suite 330 Phoenix, Arizona 85020 (602) 282-0500 Attorneys for Erchonia Medical Inc. and Kevin Tucek

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Certificate of Service I certify that on August 24, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to those attorneys registered with CM/ECF: Gordon S. Bueler, Esq. BUELER JONES, LLP 1300 N. McClintock Drive, Suite B-4 Chandler, AZ 85226 Attorneys for Miki Smith and KMS Marketing, Inc.

DECONCINI MCDONALD YETWIN & LACY, P.C.

__s/ Ira M. Schwartz___________
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North 16th Street, Suite 330 Phoenix, Arizona 85020
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