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ordering plaintiff to pay $300 to opposing counsel and $250 to the Clerk of the Court for failing to attend a settlement conference
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99 Civ. 3000 (RWS) (THK)
June 20, 2001
OPINION AND ORDER
This action, brought under Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, and related state laws, was referred to me for the purposes of settlement. For the reasons summarized below, the Court sanctions plaintiff pursuant to Federal Rule of Civil Procedure 16(f) for failure to appear at a court-ordered settlement conference.
This action was referred to me for settlement by an Order of Reference dated January 9, 2001. On January 18, 2001, I received a letter from Chaim B. Book, Esq., plaintiff's counsel at that time, asking that I schedule a settlement conference as soon as possible. I scheduled and held a settlement conference on February 13, 2001. According to Mr. Book, both he and an associate informed plaintiff, both by telephone and by letter, that plaintiff was required to attend the February 13 conference. See Affirmation of Chaim B. Book, Esq. ("Book Aff.") ¶¶ 17, 18, attached to Notice of Motion to Withdraw as Counsel, Dkt. # 16. Despite his counsel's efforts, plaintiff did not appear at the February 13 conference. Both plaintiff's and defendants' counsel were present, and plaintiff's counsel informed the Court that plaintiff had not provided him with authority to settle the action on his, behalf. Subsequent to the conference, plaintiff's counsel moved to withdraw as counsel for plaintiff, relying in part on plaintiff's lack of cooperation with regard to the February 13 conference. The Court granted the motion on April 18, 2001. See Memorandum Endorsed Order, dated April 18, 2001, Dkt. # 16.
By Order dated June 4, 2001, I ordered the parties to appear for a settlement conference on June 22, 2001. In a subsequent Order, dated June 6, 2001, I rescheduled the conference for June 18, 2001. Both Orders explicitly stated that any failure to attend the settlement conference could result in sanctions, including possible dismissal of the action.See Orders dated June 4, 2001 and June 6, 2001, Dkt. ## 20, 21. On June 18, 2001, plaintiff again failed to appear for the scheduled settlement conference. Defendants' counsel was present.
I have given serious consideration to recommending that this action be dismissed pursuant to Fed.R.Civ.P. 41(b) and/or Fed.R.Civ.P. 16(f) for failure to obey court orders. Plaintiff was given notice that continued failure to appear at the second court-ordered settlement conference could result in such a recommendation, yet he failed to appear on June 18, without providing the Court with any excuse or explanation for his nonappearance. Nevertheless, the Second Circuit has warned that dismissals are a "`harsh remedy' that are `appropriate only in extreme circumstances,'" Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (discussing Rule 41(b) dismissals) (quoting Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)), and has expressed that courts should consider whether less severe sanctions are appropriate before recommending that an action be dismissed. See id. at 113. In addition, this case has been referred to me solely for the purpose of settlement, and I am thus unaware of whether plaintiff is meeting his obligations in other aspects of the litigation.
Fed.R.Civ.P. 41(b) authorizes a court to dismiss an action "[f]or failure of the plaintiff to prosecute or to comply with . . . any order of the court. . . ." Fed.R.Civ.P. 41(b). A court may make such dismissals sua sponte. See Spencer v. Doe, 139 F.3d 107, 112 (2d Cir. 1998) (citing Minnette v. Time Warner, 997 F.2d 1023, 1027 (2d Cir. 1993)).
Fed.R.Civ.P. 16(f) authorizes a court, upon motion or sua sponte, to dismiss part or all of an action as provided in Fed.R.Civ.P. 37(b)(2)(C), for a party's failure to obey a scheduling or pretrial order, or to appear at a scheduling or pretrial conference. See Fed.R.Civ.P. 16(f).
Under these circumstances, the more appropriate sanction is to require plaintiff to pay defendants' counsel's costs, and a monetary penalty to the Court. Fed.R.Civ.P. 16(f) provides that if a party fails to obey a scheduling or pretrial order, or fails to appear at a scheduling or pretrial conference, or if the party's attorney is substantially unprepared to participate in the conference, a court may impose sanctions "as are just." Fed.R.Civ.P. 16(f). Rule 16(f) further provides,
In 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.
Fed.R.Civ.P. 16(f). Although a court may not require litigants to settle an action, it is well-established that a court may require parties to appear for a settlement conference, and that it is entirely appropriate for a court to impose sanctions pursuant to Rule 16(f) if a party fails to do so. See, e.g., Sosinsky v. Chase Manhattan Bank, No. 99 Civ. 0043 (JGK), 1999 WL 675999, at *2 (S.D.N.Y. Aug. 31, 1999) (upholding Magistrate Judge's imposition of sanctions for failure to appear at settlement conference); Dan River, Inc. v. Crown Crafts, Inc., No. 98 Civ. 3178 (LMM)(AJP), 1999 WL 287327, at *2 (S.D.N.Y. May 7, 1999) ("[T]he Court has the power under Rule 16 to require a party to appear for at least one settlement conference. A party cannot be allowed to flout such an order."); Francis v. Women's Obstetrics Gynecology Group P.C., 144 F.R.D. 646, 647 (W.D.N.Y. 1992) ("It is, of course, well-established that a district court cannot coerce parties to settle. However, a court may direct a party or a party's attorney to attend a settlement conference. The authority is specifically provided for in Rule 16(a), Fed.R.Civ.P. . . . To ensure compliance, the court may also sanction a party or a party's attorney for not complying with [such an] order.") (citations omitted).
The fact that plaintiff is now proceeding pro se does not insulate him from the requirement to comply with court orders, or from the sanctions that may result from non-compliance. See Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990) (finding that district court did not abuse its discretion in dismissing action for pro se plaintiff's failure to comply with defendants' discovery requests, and stating that "all litigants, including pro ses, have an obligation to comply with court orders") (quoting McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988)).
CONCLUSION
There is no question that in the instant case, plaintiff has failed to comply with the Court's orders that he appear for settlement conferences, and has wasted not only opposing counsel's time, but also that of the Court. Plaintiff is therefore required to pay $300.00 to defendants' counsel as compensation for the time spent in attending the last settlement conference. Based upon the Court's knowledge of prevailing attorneys' fee rates, this figure is extremely modest compensation for the two attorneys who attended the last settlement conference on defendants' behalf, and does not even provide compensation for plaintiff's failure to attend the first settlement conference. In addition, plaintiff is required to pay a sanction of $250.00 to the Clerk of the Court. Plaintiff shall make both payments by July 3, 2001.
With settlement efforts concluded, my involvement in this action is ended, and the parties are to resume and complete pretrial activity as scheduled by Judge Sweet.