Opinion
00 Civ. 3619
November 6, 2001
MEMORANDUM OPINION AND ORDER
This matter was referred to me July 18, 2001 to conduct settlement discussions. Pursuant to that Order of Reference, my staff sent letters to counsel for plaintiff and defendant on July 26, 2001 advising that a settlement conference would be held on August 16, 2001 at 2:00 p.m. A copy of my settlement procedures were sent with July 26 letter. Those procedures require, in pertinent part, that the settlement conference be attended by a principal with decision-making authority. My procedures also require the submission of ex parte statements concerning the case, including a confidential disclosure of the parties' respective positions concerning settlement, by Friday of the week prior to the conference. Finally, my procedures provide:
If a party fails to come to the settlement conference with all the required persons (attorney plus a decision-making employee from the client, plus a decision-making representative from the insurance carrier), that party may be required to reimburse all the other parties for their time and travel expenses.
Neither side sought an adjournment of the conference nor did they advise my chambers of any problem concerning the scheduling of the conference.
By the morning of August 16, I had not received any ex parte submission from plaintiff's counsel, and I held a tape-recorded conference call with counsel for both sides to find out why plaintiff had not complied with my settlement procedures. I was advised by plaintiff's counsel that he had not made the ex parte submission because his client had not authorized it. Plaintiff's counsel further advised that a representative from plaintiff with decision-making authority would not be attending the settlement conference because plaintiff's principals, who reside in Manhattan, had decided to spend the day vacationing on Long Island. Defendant's counsel advised me that his client, who resides in Joplin, Missouri, had traveled to New York to attend the settlement conference I then asked plaintiff's counsel whether there was any reason why sanctions should not be imposed and the only colorable excuse proffered by counsel was the "difficult" nature of his clients. Finding this excuse inadequate, I stated that I would impose sanctions on plaintiff, and, since defendant would have to make another trip to New York to attend a settlement conference, directed defendant to submit an affidavit setting forth the cost he incurred in traveling to New York.
A court has an inherent power to "assess attorney's fees and costs when a party has `acted in bad faith, vexatiously, wantonly, or for oppressive reasons.'" First National Supermarkets, Inc. v. Retail. Wholesale Chain Store Food Employees Union Local 338, 118 F.3d 892, 898 (2d Cir. 1997),quoting Chambers v. Nasco, Inc., 501 U.S. 32, 45-46 (1991). Although I appreciate that a court must exercise "restraint and discretion" in imposing sanctions, United States v. Seltzer, 227 F.3d 36, 39 (2d Cir. 2000), plaintiff's total disregard for the fact that both the Court and plaintiff's adversary had set aside time and prepared for the settlement conference is beyond comprehension. Moreover, the flimsiness of plaintiff's excuse for the absence of a decision maker — the desire of plaintiff's principal's to spend a day at the beach — shows a level of disrespect for the Court so profound that it ineluctably leads to a conclusion of bad faith on the part of plaintiff. Plaintiff's disrespectful conduct is all the more troubling since (1) it was plaintiff who commenced this action and sought the intervention of the Court in resolving its dispute with defendant and (2) the principals of plaintiff are both attorneys who should have learned in law school that court conferences are not to be blithely ignored.
I emphasize that sanctions are appropriate here due to the refusal of plaintiff to comply with my settlement procedures, and not a failure on the part of plaintiff's counsel. Plaintiff's counsel has appeared before me on other matters, has volunteered to represent indigent litigants in civil rights cases most attorneys reject and has always exhibited the utmost respect for the Court. counsel's candor in explaining the reason for his client's non-attendance at the settlement conference is further evidence of his professionalism and respect for the Court. The disrespect, disregard and ill-mannered conduct at issue here is entirely attributable to plaintiff's principals, not to their counsel.
As a result of plaintiff's misconduct, defendant had to make a second trip to New York to attend a settlement conference and unnecessarily incurred costs of $508.00 (Affidavit of Giltner B. Stevens, sworn to Aug. 17, 2001).
Accordingly, no later than ten (10) days from the date of this Order, plaintiff is directed to pay a sanction to the Clerk of the Court in the amount of $1,000.000 and is directed to reimburse defendant $508.00 for the expenses defendant incurred in traveling to New York to attend the aborted August 16 conference.