A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter One: Pre-Trial Considerations

1.5     Assessment Of Jury Costs For Late Notification Of Settlement
          A.  Civil
          B.  Assessment Of Jury Costs For Late Notification Of Settlement: Criminal

Many district courts have local rules authorizing the imposition of jury costs upon litigants and/or their attorneys in civil cases for failure to provide the court with timely notice of settlement. See, e.g., U.S. Dist. Ct. Rules N.D. Cal., Civil L.R. 40-1; U.S. Dist. Ct. Rules Ariz. 2.13(c); U.S. Dist. Ct. Rules S.D. Cal. Civil L.R. 16.4. The non-Ninth Circuit case law upholding local rules of this type has done so both on the basis of the district court's rule-making power, and also on the basis of the court's "inherent authority" to control and protect the administration of court proceedings. 28 USC 2071; Fed. R. Civ. P. 83; Martinez v. Thrifty Drug and Discount Co., 593 F.2d 992 (10th Cir. 1979); White v. Raymark Indus., 783 F.2d 1175 (4th Cir. 1986).

Monetary awards can be assessed against the United States only if there has been an express waiver of sovereign immunity. United States v. Woodley, 9 F.3d 774, 781 (9th Cir. 1993) (citing Block v. North Dakota, 461 U.S. 273, 287 (1983)). Provisions in the Federal Rules of Civil Procedure pertaining to monetary sanctions against litigants, such as in Rule 11 and 37(b), can be viewed as an explicit Congressional waiver of the government's sovereign immunity. Barry v. Bowen, 884 F.2d 442, 444 (9th Cir. 1989). However, the government may not be sanctioned under a local rule because local rules do not constitute explicit waivers of immunity. Woodley, 9 F.3d at 782. Unlike the civil rules, Fed. R. Crim. P. 16(d)(2) which provides that a court may "prescribe such terms and conditions as are just" to remedy discovery order violations is not an express waiver of sovereign immunity. Therefore, no monetary sanctions can be levied against the government in a criminal case under that rule. Id. at 782.

Following revisions in 1995 and 2002, FRCRP 57(b) now provides in part that "[n]o sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local district rules unless the alleged violator was furnished with actual notice of the requirement before the noncompliance." Accordingly, actual advance notice of the court's assessment of jury costs on parties failing to timely notify the court of settlement may be a predicate for imposition of costs.