                                                                              FILED
                            NOT FOR PUBLICATION                               SEP 29 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FIDELITY NATIONAL FINANCIAL                      No. 08-56038
INC., a Delaware corporation; FIDELITY
EXPRESS NETWORK INC., a California               D.C. No. 2:00-cv-06902-GAF-RZ
corporation,

              Plaintiffs - Appellees,            MEMORANDUM*

  v.

ALLEN HYMAN,

              Defendant - Appellant,

  and

COLIN H. FRIEDMAN, individually,

              Defendant.


                   Appeal from the United States District Court
                      for the Central District of California
                    Gary A. Feess, District Judge, Presiding

                           Submitted September 2, 2010**
                               Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: O’SCANNLAIN, GOULD and IKUTA, Circuit Judges.

      Attorney Allen Hyman appeals the district court’s order granting the request

of Fidelity National Financial, Inc. (“Fidelity”) to hold him liable for contempt

sanctions in the amount of $39,717.50. We have jurisdiction pursuant to 8 U.S.C.

§ 1291. As the facts are known to the parties, we repeat them only as necessary to

explain our decision. Because we conclude that the district court did not abuse its

discretion in imposing sanctions under Rule 37, see Lahiri v. Universal Music &

Video Distrib. Corp., 606 F.3d 1216, 1218 (9th Cir. 2010), we affirm.

      Although our law on third-party contempt does not give an independent

basis for imposing contempt sanctions on an attorney for aiding and abetting a

client’s contempt, see Westlake N. Prop. Owners Ass’n v. City of Thousand Oaks,

915 F.2d 1301, 1304 (9th Cir. 1990), the district court did not abuse its discretion

in imposing sanctions under Rule 37. Where a party “fails to obey an order to

provide or permit discovery,” the district court may find the party in contempt and

“must order the disobedient party, the attorney advising that party, or both to pay

the reasonable expenses, including attorney’s fees, caused by the failure, unless the

failure was substantially justified or other circumstances make an award of

expenses unjust.” Fed. R. Civ. P. 37(b)(2)(A), (C). The district court’s application



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of Rule 37 was not an abuse of discretion, as it was logical, plausible, and

supported by inferences that it properly drew from the record. See United States v.

Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc). There was sufficient

evidence supporting its conclusion that Hyman’s efforts to obtain the documents

were “half-hearted and ineffectual,” and Hyman did not meet his burden of

showing that substantial justification or other circumstances made the award

unjust. See Hyde & Drath v. Baker, 24 F.3d 1162, 1172 (9th Cir. 1994). Nor were

the district court’s findings clearly erroneous.

      Also, the record indicates that Hyman had adequate notice and opportunity

to be heard on his potential liability under Rule 37. See Lasar v. Ford Motor Co.,

399 F.3d 1101, 1109–10 (9th Cir. 2005). The district court told Hyman on two

occasions that he could be liable under Rule 37, Fidelity’s original motion

requested attorney’s fees under Rule 37, and Hyman did not file a motion for

reconsideration when the district court afforded him the opportunity to do so.

      AFFIRMED.




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