Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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6 IN THE UNITED STATES DISTRICT COURT
7 F OR THE DISTRICT OF ARIZONA
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9 MERITAGE HOMES CORP., aMaryIand No. CV 04 0384-PHX-ROS
corporation, fonnerly d/b/a/ Meritagg
10 Corporation; HANCOCK—MT ORDER
BUI DERS, INC., an Arizona
11 corporation; HANCOCK—MTH
COMMUNITIES, INC., an Arizona
12 corporation and currently dfb/a Meritage
Homes Construction, Inc., an Arizona
13 corporation, and Meritage Homes o
14 Arizona, Inc., an Arizona corporation,
Plaintiffs, g
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vs.
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17 RICKY LEE HANCOCK and BRENDA
HANCOCK, husband and wife;
18 GREGORY S. HANCOCK and LINDA
HANCOCK, husband and wife; RICK
19 HANCOCK HOMES L.L.C., an Arizona
limited liability company; RLH
20 DEVELOPMENT, L.L.C., an Arizona
limited liability company; J2H2, L.L.C., an
21 Arizona limited liability company,
22 Defendants.
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25 Pending before the Court is Plaintiffs Motion For Order To Show Cause tiled on May
26 19, 2005 (Doc. # 167) and Renewed Motion For Order To Show Cause filed on August l2,
27 2005 (Doc. #200). On April 26, 2005 (Doc. #157), this Court ordered Defendant Greg
28 Hancock ("Hancock") to dismiss his complaint in Arizona Superior Court ("the State Court
ase 2:04-cv-00384-ROS Document219 Filed 11/17/2005 Page1 of3

1 action") within ten days of the Court's Order. [See Order at 9:12-17 (April 26, 2005)].
2 Nearly six months later, Defendant Hancock has yet to dismiss the State Court action. In
3 response to Plaintiffs motions to show cause, Defendant Hancock argues that he was not
4 ignoring the Court's order, rather, he was awaiting a final decision with regards to his petition
5 to the Ninth Circuit for a Writ of Prohibition and Mandamus, which was filed on May 10,
6 2005. [See Defendant Hancocks' Response To Plaintiffs Renewed Motion For Order To
7 Show Cause p. 2] [Doc. #205]. Defendant failed to seek a stay or injunction of this Court's
8 order to dismiss in State Court pending the Ninth Circuit opinion required by Rule 8(a)(1)
9 ofthe Federal Rules of Appellate Procedure. Moreover, the Ninth Circuit denied Defendanfs
10 petition on August 5, 2005, and Defendant failed to dismiss the State Court action.
l 1 Defendant further argues that his noncompliance should be excused because the Court's order
12 to dismiss the State Court action and pay fees and costs in conjunction with the state case is
13 illegal. [ge g at p. 3]. This position is meritless. Defendant is still required to comply with
14 the terms of this Court's Order.
15 In determining whether the exercise of contempt powers is appropriate, the moving
16 party has the initial burden of providing clear and convincing evidence that a specific and
17 definite order of the Court has been violated. See Balla v. Idaho State Bd. of Corrections,
18 869 F.2d 461, 466 (9‘" Cir. 1989). The burden then shifts to the party violating the order to
19 show that the party "took every reasonable step to comply." Hook v. State of Ariz., 907 F.
20 Supp. 1326, 1341 (D. Ariz. 1995). Plaintiffs have established that a violation of this Court's
21 April 27, 2005 order occurred. Consequently, Defendant and his counsel are ordered to show
22 good cause why they should not be cited for contempt of court for failure to comply with this
23 order and have sanctions imposed including attorneys fees and default judgment pursuant to
24 28 U.S.C. § 1927 and the inherent power of the Court}
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26 "'Federal courts have inherent powers to manage their own proceedings and to control
27 the conduct of those who appear before them." Ericksonlv. Newmar Corp., *87 F.3-d 298, 303
(9‘" Cir. 1996). In exercising this power, courts may "impose sanctions including, where
28 appropriate, default or dismissal." Thompson v. Housing Auth., 782 F.2d 829, 831 (9"‘ Cir.
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1 Accordingly,
2 IT IS THEREFORE ORDERED that a Show Cause hearing is set for jj]/item AM
3 at _"L·;;/_. The parties shall appear in person.
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6 DATED this i{,__ day of November, 2005.
7 a--aa e-
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9 .. oslyn . 1 ver
I0 United States District Judge
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26 1986). Sanctions may be imposed upon a finding of bad faith which includes a "broad range
27 of willful improper conduct," including "recklessness when combined with an additional
factor such as frivolousness, harassment, or an improper purpose." Fink v. Gomez, 239 F.3d
28 989, 991-92 (9* Cir. 2001).
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