Opinion
CASE NO. 17-10125
07-19-2017
IN THE MATTER OF: LOUIS ALLEN SMITH AMY SUE SMITH Debtors
NOT FOR PUBLICATION DECISION AND ORDER ON RESPONSE TO SHOW CAUSE
On July 19, 2017.
On June 19, 2017, the court held a pretrial conference with regard to a motion for relief from stay filed by USAA Federal Savings Bank. Counsel for the Bank, Bethany Wojtanowicz, failed to appear. As a result, the court denied the motion, and, on its own motion, issued an order requiring Ms. Wojtanowicz to show cause in writing why she should not be sanctioned as the result of her failure to appear. Ms. Wojtanowicz filed a timely response to the order to show cause and it is that response which brings the matter before the court for a decision.
A court's most fundamental expectations of the attorneys who appear before it are to show up and be prepared. Thus, an attorney who fails to appear for proceedings scheduled because of something they have filed, or who appears but is substantially unprepared to participate in those proceedings, may be sanctioned either through the court's inherent authority or through Rule 16(f) of the Federal Rules of Civil Procedure. See, G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 651-53 (7th Cir. 1989); Matter of Sanction of Baker, 744 F.2d 1438 (10th Cir. 1984); Matter of Philbert, 340 B.R. 886 (Bankr. N.D. Ind 2006). In bankruptcy cases this is true for both adversary proceedings and contested matters. Philbert, 340 B.R. at 889. See also, N.D. Ind. L.B.R. B-9014-2(b).
The failure to appear is one type of conduct specifically identified by Rule 16(f) as the basis for sanctions. Unless non-compliance was "substantially justified" or other circumstances would make an award "unjust," the non-defaulting party is entitled to reimbursement. As a result, the imposition of sanctions under the rule does not depend upon a finding of bad faith, willfulness, or contumaciousness. Matter of Sanction of Baker, 744 F.2d 1438, 1440-41 (10th Cir. 1984). A negligent failure to comply will suffice. Id. at 1441. See also, Harrell v. U.S., 117 F.R.D. 86, 88 (D. E.D. N.C. 1987); Barsoumian v. Szozda, 108 F.R.D. 426 (D. S.D. N.Y. 1985).
Counsel's response does not show that her failure to appear for the scheduled pretrial conference was substantially justified or demonstrate that other circumstances would make an award unjust. The response she filed indicates that she failed to attend because she failed to account for the difference in time zones, and so the time of the pretrial conference was not correctly placed on counsel's calendar.
The court acknowledges that Ms. Wojtanowicz's absence was not willful or contumacious. It was, instead, simply negligent because whatever procedures her office had in place to properly calendar court hearings failed. See, Pioneer Inv. Services Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 394-96, 113 S.Ct. 1489, 1498-99 (1993) (internal office problems will not excuse an attorney's failure to comply with a filing deadline). That may make counsel's absence understandable, but it does not make it "substantially justified."
In order to compensate the United States for the costs she has unnecessarily imposed upon it and the additional time and attention she has required the court to devote to this matter, thereby depriving other litigants of its attention, and to deter similar conduct, see, BondPro Corp. v. Siemens Power Generation, Inc., 466 F.3d 562, 563 (7th Cir. 2006) ("The time has come to impose an exemplary public sanction in the hope of deterring further violations."), she shall pay the clerk of this court the sum of $200.00. In light of the importance the court places upon counsel's attendance and the sanctions imposed elsewhere for the failure to comply with procedural rules, the sanctions imposed by this order are probably a bargain. See, BondPro, 466 F.3d 562; U.S. v. White, 472 F.3d 458, 465-66 (7th Cir. 2006); Hill v. Porter Memorial Hospital, 90 F.3d 220, 225-27 (7th Cir. 1996) ($1000 sanctions imposed upon counsel for failing to comply with procedural rules concerning the content of appellate briefs).
The amounts due the clerk of this court shall be paid within fourteen (14) days.
SO ORDERED.
/s/ Robert E . Grant
Chief Judge, United States Bankruptcy Court