KLINEDINST PC 501 West Broapway, SuITE 600 _ SAN DIEGO, CALIFORNIA 92101

) ) OD LA tea Case|P:12-cv-08333-ODW-JC Document 82 Filed 03/08/13 Page1lof6 Pagé Hap 20)

1 || Heather L. Rosing, Bar No. 183986 David M. Majchrzak, Bar No. 220860 2 1 KLINEDINST PC : 501 West Broadway, Suite 600 : = 3 San Diego, California 92101 , ia (619) 239 -8131/E AX (619) 238-8707 = 4 ee np@klinedinstlaw. .com “a P dmajchrzak@klinedinstlaw.com oo Specially Appearing for =e 6 JOHN STE ELE: PAUL HANSMEIER; oa PAUL DUFFY; ‘and ANGELA VAN : 4a 7 || DEN HEMEL 7. 8 UNITED STATES DISTRICT COURT | a) CENTRAL DISTRICT OF CALIFORNIA 10 11 || INGENUITY 13 LLC, Case No. 2:12-cv-8333-ODW(JCx) 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX 13 Vv. PARTE APPLICATION FOR ORDER . WITHDRAWING ORDER FOR JOHN 14 || JOHN DOE, STEELE, PAUL HANSMEIER, PAUL DUFFY, ‘AND ANGELA VAN DEN 15 - Defendant. HEMEL TO APPEAR 16 . Judge: Hon. Otis D. Wright, II Magistrate Judge: Hon. Jacqueline Chooljian 17 Courtroom: il 1s Complaint Filed: September 27, 2012 Tria] Date: None set 19 20 2) I. 22 INTRODUCTION 23 On March 5, 2013, this court issued an order that eight individuals would

24 || have to appear before this court on March 11, 2013. But this court lacks 25 || jurisdiction to order those individuals to appear in that they reside outside

26 || California, are not parties to this litigation, have not appeared in this action, and do

27 || not represent parties to this action.

ae _ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR. _ ORDER WITHDRAWING ORDER FOR JOHN STEELE, PAUL HANSMEIER, PAUL DUFFY, AND ANGELA VAN DEN HEMEL TO APPEAR

KLINEDINST PC 501 West BRoapway, Surre 600 SAN DIEGO, CALIFORNIA 92101

. ) ‘ Case -12-cv-08333-ODW-JC? Document 82 Filed 03/08/13 Page2of6 PageID#:2121 |.

1 Moreover, although some of these individuals may have received notice as 2 || the court ordered, others did not because those charged with providing notice 3 I simply lacked the information necessary to do so. And, even those that were served 4 || have not received reasonable notice of the nature of the proceedings they are being 5 || ordered to appear in or what is expected of them besides their physical presence. 6 Further, they have not received a reasonable amount of notice t | 7 || accommodate cross-country travel or information regarding who will pay for such 8 || travel. Based on these factors, the court should withdraw its order for John Steele, 9 || Paul Hansmeier, Paul Duffy, and Angela Van Den Hemel to appear on Monday,

10 |] March 11, 2013 at 1:30 P.M. 7

1] Il.

12 || THE COURT LACKS PERSONAL JURISDICTION OVER THOSE IT HAS

ene _ ORDERED TO APPEAR 14 Even where the court seeks to adjudicate issues between parties, it must have

15 |} personal jurisdiction over them. Here, Steele, Hansmeier, Duffy, and Van Den 16 || Hemel are not parties and have not otherwise participated in this litigation. As 17 || such, the public policy behind the need to determine personal jurisdiction is 18 || arguably at an elevated level because, as individuals, they effectively have “no dog 19 || in this fight.” 20 Ordinarily, federal courts do not have nationwide personal jurisdiction. With 21 || few exceptions, they have no broader power over persons outside the state in 22 || which they sit than do the local state courts, Omni Capital Int’l, Ltd. v. Rudolph - 23 || Wolff & Co., Ltd. (1987) 484 U.S. 97, 104-105.

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ie MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER WITHDRAWING ORDER FOR JOHN STEELE, PAUL HANSMEIER, PAUL DUFFY, AND ANGELA VAN DEN HEMEL TO APPEAR

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1 Here, because they are not parties in this action, Steele, Hansmeier, Duffy, 2 || and Van Den Hemel can be nothing more than witnesses. California Code of Civil 3 || Procedure section 1989 provides that “a witness ... is not obliged to attend as a 4 || witness before any court, judge, justice or any other officer, unless the witness is a 5 || resident within the state at the time of service.” None of these individuals named in 6 || the court’s March 5, 2013 reside in California. Decl. of Steel, §§ 3-6. Thus, the 7 || court lacks jurisdiction to order them to appear. | 8 iil. 9 STEELE, HANSMEJER, DUFFY, AND VAN DEN HEMEL DID NOT 8 S 10 RECEIVE REASONABLE NOTICE OF THIS PROCEEDING V 7 : dl Due process mandates that a respondent to a Rule 11 sanctions motion Z : 12 || receive reasonable notice of the sanctions being sought and the opportunity to 586 13 || submit an opposition. Fed. R. Civ. P. 11(c)(1); Miranda v. Southern Pac. Transp. tal 14 || Co., 710 F.2d 516, 522 (9th Cir. 1983). This applies equally to sanctions imposed Ba 15 || sua sponte by the court. So, before imposing sanctions, the court must issue an 16 || order to show cause why the respondent has not violated Rule 11 and allow the 17 | party to be heard. Fed. R. Civ. P. 11(c)(3); Simmerman v. Corino, 27 F.3d 58, 64 18 || (rd Cir. 1994); Marlin v. Moody Nat’! Bank, N.A., 533 F.3d 374, 379 (Sth Cir. 19 || 2008). | 20 Although counsel submitting this application has been unable to identify any 21 || authority addressing the notice requirements to witnesses ordered to appear at such 22 hearings, logic dictates that such individuals should at least be similarly 23 || accommodated with reasonable notice. Here, the court’s March 5, 2013 order that 24 || notice be provided by March 7, 2013 to attend a March 11, 2013 hearing with no 25 || further information is fundamentally unreasonable. 26 As set forth above, all of the witnesses that the court has ordered to appear 27 || reside out-of-state. And all of them are employed within the legal services 28 || industry. As such, providing two to three days’ business notice that they need to

xe MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER WITHDRAWING ORDER FOR JOHN STEELE, PAUL HANSMEIER, PAUL DUFFY, AND ANGELA VAN DEN HEMEL TO APPEAR

KLINEDINST PC 501 West Broapway, SUITE 600 SAN DieGo, CALIFORNIA 92101

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) ‘ -12-cv-08333-ODW-JC” Document 82 Filed 03/08/13 Page 4of6 Page ID #:2123

travel across the country for a hearing in a case they have not been part of is inherently unreasonable in that it could adversely impact their clients. |

Further, the notice that they appear was absent any information regarding the reason for their appearance. Presumptively, it would be to provide testimony, but the court has issued no order identifying what the scope of that testimony might be.

Without such notice, the witnesses may not properly prepare and are, therefore,

deprived of due process. —

Finally, witnesses are entitled not only to receive payment for their attendance, but also for travel expenses. 28 U.S.C. § 1821 (2013). But, the court’s order not only fails to provide who will compensate Steele, Hansmeier, Duffy, and Van Den Hemel for their time and these expenses, but that they will be compensated at all. Given the considerable expense of traveling such distances (including consideration of the fact that one of the witnesses likely has limited means given her employment as a paralegal), especially on such short notice when many common carriers may not have seats available, this is a significant issue,

For these reasons, even if the court had jurisdiction over the parties, the notice would be unreasonable to them and the court would, at a minimum, have to withdraw the order and issue a new one for a future date that would afford Steele, Hansmeier, Duffy, and Van Den Hemel reasonable notice of the hearing, their rights, and the purpose for their appearance. | mei

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-4- ; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR

ORDER WITHDRAWING ORDER FOR JOHN STEELE, PAUL HANSMEIER, PAUL DUFFY, AND ANGELA VAN DEN HEMEL TO APPEAR

Case.

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1 IV. Z CONCLUSION 3 The court does not have jurisdiction to order out-of-state residents Steele, 4 || Hansmeier, Duffy, and Van Den Hemel to appear as witnesses at a hearing. And, 7 5-.|| even if it did,.the notice that court provided for parties to travel across the country. 6 || was incomplete and inadequate. For these reasons, the court should withdraw its 7 || March 5, 2013 ordering these individuals to appear in California on March 11, 8 | 2013. 9 33 10 ~ Klinedinst PC Eo pag Hi] &£5 12 || DATED: March 8. 2013 By: aR : He er L., Rosing Z ag 7 Specially Appeatng fo for =o i ISHN STEELE E PAUL I DUFFY; and nY 15 ANGELA VAN DEN HEMEL 1 6 14621918v1 17 18 19 20 21 22 23 24 25 26 27 28

a5. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER WITHDRAWING ORDER FOR JOHN STEELE, PAUL HANSMEIER, PAUL DUFFY, AND ANGELA VAN DEN HEMEL TO APPEAR