Opinion
06 Civ. 4003 (PAC)(KNF).
April 9, 2007
MEMORANDUM and ORDER
I. INTRODUCTION
Defendant Trans Union LLC ("Trans Union") has made a motion for sanctions, pursuant to Rule 16(f) of the Federal Rules of Civil Procedure, to be imposed by the Court on the plaintiff, based upon allegations that: (1) the plaintiff has engaged in a lengthy pattern of dilatory and vexatious conduct; and (2) the plaintiff failed to participate in two conferences with the Court. The plaintiff, proceeding pro se, opposes the defendant's motion.
II. BACKGROUND
Since 2002, the plaintiff has initiated several actions that have been litigated in this judicial district. The defendant contends that, in these actions, the plaintiff has demonstrated "a lengthy pattern of dilatory and vexatious conduct." In support of its contention, the defendant points to the following specific instances: (1) in September 2006, the plaintiff's action against Prestige Realty was dismissed based on the plaintiff's failure to comply with a court order, see Lee v. Prestige Realty, No. 05 Civ. 3400 (S.D.N.Y. Sept. 22, 2006); (2) the plaintiff failed to appear for an initial pretrial conference in Lee v. Bank One, No. 05 Civ. 3036, slip op. at 1 (S.D.N.Y. Sept. 8, 2005); (3) the plaintiff was permitted to re-file his complaint against certain defendants in Lee v. Lending Tree, No. 06 Civ. 827 (S.D.N.Y. filed Feb. 2, 2006); however, he failed to do so, id. docket entry No. 19 (Mar. 2, 2006); and (4) during the pendency of the plaintiff's action against American Express and individual employees of American Express, he initiated another action against the same parties,see Lee v. McIntosh, No. 03 Civ. 2301 (S.D.N.Y. filed April 3, 2003) and Lee v. McIntosh, No. 03 Civ. 3144 (S.D.N.Y. filed May 5, 2003).
In the instant action, an initial pretrial conference was scheduled for October 24, 2006. At the defendant's request, the conference was adjourned to November 6, 2006. The November 6, 2006 conference was then adjourned to November 15, 2006, due to the plaintiff falling ill. Thereafter, the November 15, 2006 conference was adjourned to November 28, 2006, again, due to the plaintiff's poor health.
On November 28, 2006, the plaintiff failed to appear for the conference. On that day, the Court issued an order ("November 28 Order") directing the plaintiff to appear on December 4, 2006. In the November 28 Order, the plaintiff was advised that his "failure to comply with any order of the Court may result in the issuance of a Report and Recommendation to the assigned district judge that the instant action be dismissed."
On December 4, 2006, Timothy Creech, Esq. ("Creech"), counsel to the defendant, appeared at the initial pretrial conference via telephone, by permission of the Court. The Court's courtroom deputy clerk informed Creech that the plaintiff had not yet arrived in the courtroom. Approximately ten minutes after the conference was scheduled to begin, Creech offered to contact the plaintiff via telephone. Minutes later, Creech called the Court with the plaintiff on the telephone line. Creech and the plaintiff confirmed their appearances with the Court's courtroom deputy clerk; however, by the time the case was called, which was only a few minutes later, the plaintiff was no longer on the telephone line. The plaintiff made no further contact with the Court or Creech.
The plaintiff contends he was unable to participate in the November 28, 2006 conference due to ill health. In support of this claim, the plaintiff has submitted to the Court invoices for medical services sought on November 3, 2006, and receipts for prescription drug medication he purchased on the same day.
With respect to the December 4, 2006 conference, the plaintiff contends that, upon receiving Creech's telephone call, his cellular telephone lost service, due to a low battery. The plaintiff has not offered any explanation for his failure to appear at the courthouse, in person, as required by the Court's November 28 Order.
III. DISCUSSION
Fed.R.Civ.P. 16(f)
Fed.R.Civ.P. 16(f) informs that, "[i]f a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)." Moreover, Fed.R.Civ.P. 16(f) states that, "[i]n lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust." Sanctions may be warranted even where a party is a pro se litigant or indigent.See McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988) ("[A]ll litigants, including pro ses, have an obligation to comply with court orders. When they flout that obligation they, like all litigants, must suffer the consequences of their actions.").
Pursuant to Federal Rule of Civil Procedure 37(b)(2)(C), a district court may issue an order dismissing an action where a party has failed to comply with discovery orders. "A court must consider five factors in exercising its discretion to dismiss an action: (1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants are likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal." Levene v. City of New York, No. 97 Civ. 7985, 1999 WL 397482, at *2 (S.D.N.Y. June 15, 1999).
In the instant case, the defendant seeks attorney's fees, costs and/or dismissal of the plaintiff's complaint with prejudice, as sanctions, based on allegations that the plaintiff (1) has engaged in a "pattern of dilatory and vexatious conduct;" and (2) failed to participate in two court conferences.
The Court finds, based on the plaintiff's failure to comply with two court orders, sanctions are warranted. However, the sanction of dismissal, which is an extreme measure, see Dodson v. Runyon, 86 F.3d 37, 39 (2d Cir. 1996); Pearson v. Metro-North Commuter R.R. Co., No. 87 Civ. 6389, 1990 WL 20173, at *4 (S.D.N.Y. Mar. 8, 1990), is not warranted because the delay caused by the plaintiff's failure to appear for the conferences on November 28, 2006, and December 4, 2006, was relatively short in duration and the prejudice caused to the defendant can be remedied through a lesser sanction: payment of attorney's fees and costs reasonably incurred by the defendant due to Lee's misconduct. The Court finds that requiring the plaintiff to pay the defendant the attorney's fees and costs it incurred as a result of the plaintiff's failure to comply with the Court's orders is, in the circumstance of the case at bar, a reasonable and appropriate sanction. Such a sanction will act as a specific and general deterrent to the type of conduct engaged in by the plaintiff at this early stage of the litigation.
The Court gives little weight to the specific instances noted by the defendant, in support if its contention that the plaintiff has demonstrated a pattern, through other cases litigated in this judicial district, of vexatious and dilatory litigation behavior. The instances relied upon by the defendant do not demonstrate clearly a pattern by Lee of failing to abide by court orders. This is not to say that these instances may not be used to support any future application by the defendant to dismiss litigation initiated by the plaintiff should he fail to prosecute an action appropriately.
In the Second Circuit, a party seeking an award of attorney's fees must support that request with contemporaneous time records that show, "for each attorney, the date, the hours expended, and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Attorney fee applications that do not contain such supporting data "should normally be disallowed." Id. at 1154.
The defendant's submissions include Creech's affidavit, in support of its request for attorney's fees and costs. Creech's time records indicate that the defendant incurred attorney's fees, through the work he performed, in an amount of $2,255. That amount is based on 8.2 hours of work, billed at an hourly rate of $275. The Court finds that the attorney's fees the defendant incurred, based on the work performed by Creech, are reasonable. In addition to attorney's fees, the defendant requests $125.00 in costs, based on the value of the train ticket purchased by Creech so that he could travel to New York from Philadelphia to attend the November 28, 2006 conference. This cost is reasonable and must be paid by the plaintiff.
IV. CONCLUSION
For the reasons set forth above, the defendant's motion is granted, to the extent that, as a sanction for failing to obey court orders, the plaintiff shall pay $2,380 to the defendant. This amount represents the attorney's fees and costs the defendant reasonably incurred as a result of the plaintiff's conduct.SO ORDERED.