Mitchell v. Lyons Professional Servs., Inc., No. 10-5100 (2d Cir. 2013)

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Appellants appealed the denial of their motion for a writ of execution against Garrison Services. The motion was based on default judgments appellants had earlier obtained against Lyons. The court denied the motion as a sanction for appellants' counsel's repeated failures to comply with the court's orders. The court held that although the district court had an adequate basis to sanction counsel and accorded the required procedural safeguards, further findings were needed to support a sanction that fell entirely on the clients rather than principally on the lawyer.

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10-5100-cv Mitchell v. Lyons Prof l Servs., Inc. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2012 4 5 (Submitted: February 1, 2012 Decided: February 28, 2013) 6 Docket No. 10-5100-cv 7 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 8 9 10 11 KEESHA MITCHELL, THERESA CAMPBELL, SEANNETTE CAMPBELL, and TANISHA SELBY, Plaintiffs-Appellants, 12 v. 13 14 15 16 17 18 19 20 21 22 23 LYONS PROFESSIONAL SERVICES, INC., 24 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 25 B e f o r e: 26 Defendant-Appellee, RICHARD TRIM and TERRY TATUM, Defendants, CHRISTOPHER M. LYONS and GARRISON PROFESSIONAL SERVICES, INC., Interested Parties-Appellees.* WINTER, RAGGI, and CHIN, Circuit Judges. Appeal from the denial of plaintiffs-appellants motion to 27 execute a monetary judgment entered as a sanction for attorney 28 misconduct in the United States District Court for the Eastern 29 District of New York (Brian Cogan, Judge). * We vacate and remand. The Clerk of the Court is instructed to conform the caption in accordance herewith. 1 1 2 3 4 5 6 7 8 9 Mitchell L. Perry, Rawlins Law Firm, New York, New York, for Appellants. Brooke L. Anthony, Law Offices of Raymond A. Giusto, P.C., West Bay Shore, New York, for Appellees. WINTER, Circuit Judge: Keesha Mitchell, Theresa Campbell, Seannette Campbell, and 10 Tanisha Selby appeal the denial of their motion for a writ of 11 execution against Christopher M. Lyons and Garrison Professional 12 Services, Inc. ("Garrison Services"). 13 and N.Y. C.P.L.R. § 5225(b). 14 judgments appellants had earlier obtained against defendant Lyons 15 Professional Services, Inc. ("Lyons").1 16 denied this motion as a sanction for appellants counsel's 17 repeated failures to comply with the court s orders. 18 that although the district court had more than an adequate basis 19 to sanction counsel and accorded the required procedural 20 safeguards, further findings are needed to support a sanction 21 that falls entirely on the clients rather than principally on the 22 lawyer. 23 24 See Fed. R. Civ. P. 69(a) The motion was based on default The district court We hold BACKGROUND The underlying action is against appellants former employer 25 Lyons and two supervisory personnel, Trim and Tatum, for 26 employment discrimination under federal, state, and local law. 1 The district court permitted appellants to proceed against Lyons and Garrison Services by motion rather than by filing a separate proceeding. We express no view regarding the propriety of that decision. 2 1 The complaint alleged incidents of sexual harassment and sexual 2 assault by Trim and Tatum, with vicarious liability attributable 3 to Lyons. 4 and Trim, who both failed to appear, and dismissed the case 5 against Tatum. 6 $266,590, consisting of back pay, damages for emotional harm, and 7 punitive damages. 8 motion under Federal Rule of Civil Procedure 69(a) and N.Y. 9 C.P.L.R. § 5225(b) against Lyons; Trim;2 Lyons s alleged 10 successor in interest, Garrison; and Lyons s sole owner, 11 Christopher Lyons. 12 Appellants obtained default judgments against Lyons At a damages inquest, the district court awarded On May 10, 2010, appellants filed an execution During the proceedings leading up to this motion, 13 appellants counsel, Gary Rawlins, engaged in repeated acts that 14 sometimes individually, but certainly collectively, amounted to 15 willful disregard of court orders. 16 We summarize those relevant acts. Rawlins three times 17 sought and obtained adjournments of the Initial Status Conference 18 because he was unable to proceed. 19 was on vacation. 20 proposed adjournment only one day before the Conference was 21 scheduled, in violation of Judge Cogan s rule requiring 48 hours 22 notice. 23 24 On one of these occasions he On another, he notified the court of the Twice Rawlins was ordered to provide notice of the Initial Status Conference to Tatum, Lyons, and Trim and to file proof of 2 Appellants later settled the action against Trim. 3 1 service of this notice with the court within one week. 2 Rawlins failed to do so. 3 Show Cause for why he should not be sanctioned for this failure, 4 Rawlins responded that he had served notice on Tatum (without 5 filing proof of the service) but had mistakenly overlooked the 6 court s requirement to also serve notice on Lyons and Trim. 7 court declined to impose sanctions. 8 9 Twice After the court entered an Order to The In the proceedings to execute the money judgment, Rawlins continually failed both to comply with court orders and to 10 communicate in advance with the court in an effort to reduce the 11 disruptive effects of his noncompliance. 12 the 48-hour rule when he requested an adjournment of a damages 13 inquest the day before it was scheduled. 14 discovery proceedings, he could not proceed with a scheduled 15 hearing on the execution motion. 16 to appear at the discovery hearing, the district court issued a 17 detailed scheduling order with several warnings. 18 a statement that Rawlins s nonappearance was the latest in a 19 series of failures by plaintiffs' counsel to effectively 20 communicate with the Court and to demonstrate basic familiarity 21 with the requirements of federal practice and a warning that 22 [t]he Court believes that it would be acting within its 23 discretion to simply deny plaintiffs [execution] motion based on 24 counsel s failure to appear, particularly in light of the history 25 of prior miscues. 26 Prof l Servs., Inc., No. 09 Civ. 1587 (BMC) (E.D.N.Y. Sept. 27, Rawlins again violated At one point during Following both sides failure These included Minute Entry & Order at 1, Mitchell v. Lyons 4 1 2010). Nevertheless, the district court allowed the execution 2 action to continue with specific scheduling dates and 3 requirements in the scheduling order. 4 The order set a hearing for November 8, required Rawlins to 5 prepare certain materials, and stated specifically that failure 6 to comply with these procedures will result in denial of [the 7 execution] motion without further accommodations. 8 Nevertheless, Rawlins appeared at the November 8 hearing without 9 having prepared the required materials. Id. at 2. Despite the language in 10 the scheduling order warning of dismissal for failure to comply 11 with the court s procedures, the court instead sanctioned Rawlins 12 $500 and rescheduled the hearing for November 15, one week later. 13 Rawlins then failed to appear timely for the rescheduled 14 hearing, even though the original scheduling order regarding the 15 hearing stated expressly that failure to appear on time will 16 result in denial of [the execution] motion. 17 fruitlessly waiting for him and without any notice that he would 18 ever appear, the district court dismissed the execution motion. 19 Id. at 2-3. After Subsequently, appellants and Rawlins moved for 20 reconsideration of the sanction. The court gave Rawlins an 21 opportunity to explain or justify his transgressions and why the 22 sanction of dismissal should not be imposed. 23 individuals also made submissions to the district court, arguing 24 that their motion should not be dismissed. 25 submissions, the district court found Rawlins s account of his 5 Appellants as After considering the 1 misconduct -- mistaken scheduling notes -- to be not . . . 2 compelling in light of his chronic failures and denied the 3 motion for reconsideration. 4 5 This appeal followed. DISCUSSION Every district court has the inherent power to supervise 6 and control its own proceedings and to sanction counsel or a 7 litigant for . . . disobeying the court s orders. 8 Morin, 297 F.3d 114, 125 (2d Cir. 2002); see also Lewis v. 9 Rawson, 564 F.3d 569, 575 (2d Cir. 2009) (noting that the Mickle v. 10 district court s power to dismiss an action, while codified in 11 the Federal Rules of Civil Procedure and elsewhere, is inherent). 12 We review a district court s decision to impose sanctions for 13 failure to comply with its orders for abuse of discretion. 14 Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir. 1996); see also 15 Lewis, 564 F.3d at 575 (reviewing dismissal for failure to 16 prosecute). 17 here, is the harshest of sanctions and must be proceeded by 18 particular procedural prerequisites. 19 sanctionable conduct, the standard by which it will be assessed, 20 and an opportunity to be heard must be given. 21 F.3d at 126 (reversing sanction of dismissal for attorney 22 misconduct due to lack of notice and opportunity to be heard); 23 cf. Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302-03 (2d 24 Cir. 2009) (recognizing that, in context of Federal Rule of Civil 25 Procedure 37(b) and (d) sanctions, a warning that noncompliance See Dismissing an action, which effectively occurred 6 Specifically, notice of the See Mickle, 297 1 with court order will result in dismissal may suffice). 2 Moreover, the sanction of dismissal with prejudice -- the 3 effective result of the denial of appellants motion for a writ 4 of execution -- must be supported by clear evidence of 5 misconduct and a high degree of specificity in the factual 6 findings. 7 Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986)) (internal quotation 8 marks omitted). 9 Mickle, 297 F.3d at 125-26 (quoting Oliveri v. Further, mindful that the sanction of dismissal with 10 prejudice has harsh consequences for clients, who may be 11 blameless, it should be used only in extreme situations, see 12 Lewis, 564 F.3d at 575 76 (internal quotation marks omitted); cf. 13 Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 14 1990) (reviewing Federal Rule of Civil Procedure 37(d) sanction 15 order), and even then only upon a finding of willfulness, bad 16 faith, or reasonably serious fault, Commercial Cleaning Servs., 17 L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386 87 (2d Cir. 18 2001); Lucas, 84 F.3d at 535 (adopting five-factor fault standard 19 based on (1) duration of noncompliance; (2) whether plaintiff 20 was on notice that failure to comply would result in dismissal ; 21 (3) likely prejudice to defendant from delay resulting from 22 noncompliance; (4) balancing of the court s interest in managing 23 its docket with plaintiff s interest in receiving fair chance to 24 be heard ; and (5) whether the district court adequately 25 considered the adequacy of lesser sanctions). 7 1 Applying these principles, we find no defect in the 2 procedural safeguards afforded. The district court s detailed 3 scheduling order clearly stated that future noncompliance and 4 tardiness would be met with dismissal of the execution motion and 5 gave appellants and Rawlins the opportunity to respond. 6 explicitly stated that failure to comply with [the scheduling 7 order s] procedures will result in denial of [the execution] 8 motion without further accommodations. 9 2, Mitchell v. Lyons Prof l Servs., Inc., No. 09 Civ. 1587 (BMC) It Minute Entry & Order at 10 (E.D.N.Y. Sept. 27, 2010). 11 failure to appear on time will result in denial of [the 12 execution] motion. 13 notice to Rawlins that the execution motion would be dismissed 14 for future transgressions. 15 The order further warned Rawlins that Id. at 2-3. This language indisputably gave Once the execution motion was denied, appellants had another 16 opportunity to be heard in connection with their motion for 17 reconsideration, that, when coupled with the clear notice of 18 impending sanctions, satisfies the procedural safeguards outlined 19 in Mickle. 20 effect is not required when the notice of impending dismissal is 21 clearly communicated, in the context of a scheduling order or by 22 other means. 23 opportunity to be heard occurs before or at the time of dismissal 24 or, as in this case, at a separate motion for reconsideration. 25 Cf. Link v. Wabash R.R. Co., 370 U.S. 626, 632 (1962) (noting An opportunity to be heard before a dismissal takes Mickle s requirements are met so long as the 8 1 that a Rule 60(b) motion provides an escape hatch with respect 2 to counsel s opportunity to be heard, which can render even a 3 lack of notice prior to sanction dismissal of less 4 consequence ). 5 Finally, because dismissal of the action is particularly 6 harsh, the dismissal must be accompanied by a high degree of 7 specificity in the factual findings. 8 (internal quotation marks omitted). 9 case in open court, the district court did not specifically Mickle, 297 F.3d at 125-26 When dismissing appellants 10 elaborate on the reasons for dismissal. 11 specificity in the court s prior scheduling order and its 12 reference in open court to Rawlins s repeated failures to comply 13 with court orders, the court s reasons for refusing to enforce 14 appellants execution motion were self-evident, thereby providing 15 them with an opportunity to respond in an informed manner to the 16 reasons for the sanction. 17 Nevertheless, given the See id. A consideration of the five Lucas factors also supports a 18 finding of reasonably serious fault, Commercial Cleaning 19 Servs., 271 F.3d at 386, justifying the sanction imposed. 20 first four factors weigh in favor of dismissal: 21 noncompliance occurred throughout the entire 18 months of the 22 district court proceedings; (2) notice was given by the court two 23 months before the motion was dismissed that future misconduct 24 would result in dismissal; (3) further delays would continue to 25 waste the time and resources of adversary parties; and (4) the 9 The (1) instances of 1 court has a clear need to manage its docket, which Rawlins 2 seriously disrupted. 3 serious costs on adversaries, on parties to other matters before 4 the court who may find their scheduling disrupted or decisions 5 delayed, and on the efficiency with which the district court 6 addresses its business. 7 Conduct such as occurred here can impose We take issue with the district court only with regard to 8 the final Lucas factor, whether alternative sanctions not 9 involving the serious harm to counsel s clients were adequately 10 considered. The district court first threatened a lesser $500 11 sanction against Rawlins, to no avail. 12 record, we cannot determine, and the district court has made no 13 findings as to, whether the delays leading to dismissal were 14 solely a result of Rawlins s actions and not those of his 15 clients. 16 the lawyer s disregard of his obligation toward his client, the 17 more this . . . argues in favor of a less drastic sanction 18 imposed directly on the lawyer. 19 40 (2d Cir. 1996). 20 by the acts of his lawyer, see Link, 370 U.S. at 633 34 & n.10, 21 but as we noted in Dodson, [t]his principle, however, does not 22 relieve the district court of the obligation to consider the 23 relevant factors before dismissing an action - especially the 24 suitability of lesser sanctions, 86 F.3d at 40. However, on the present We have held that the more the delay was occasioned by Dodson v. Runyon, 86 F.3d 37, It is true that a client is typically bound 25 10 1 A wide panoply of sanctions was, and is, at the district 2 court s disposal. These options include monetary sanctions on 3 counsel and the assessment of costs and counsel fees generated by 4 the delinquency. 5 failure to pay such sanctions. 6 146 (2d Cir. 1999) (per curiam). 7 disciplinary and contempt powers would support sanctions beyond 8 costs and fees, such as mandated disclosure by counsel of his 9 sanctionable conduct to the bar, to future clients, and to courts A suspension from practice may be imposed for a See In re Flannery, 186 F.3d 143, The district court s 10 in which Rawlins may appear. See Chambers v. NASCO, Inc., 501 11 U.S. 32, 44 45 (1991); Gallop v. Cheney, 667 F.3d 226, 230 (2d 12 Cir. 2012) (per curiam) (requiring attorney to provide notice of 13 his sanctions to any federal court within the Second Circuit for 14 a period of one year); Dodson, 86 F.3d at 41 (citing Shea v. 15 Donohoe Constr. Co., Inc., 795 F.2d 1071, 1078 (D.C. Cir. 1986) 16 (noting that sanctions may include communication of attorney s 17 actions to clients and the bar association)). 18 court need not exhaust these alternative possibilities, we do not 19 know on the record before us whether these alternatives were ever 20 considered or the grounds on which they were rejected. 21 case appellants are unsophisticated, Minute Entry & Order at 2, 22 Mitchell v. Lyons Prof l Servs., Inc., No. 09 Civ. 1587 (BMC) 23 (E.D.N.Y. Sept. 27, 2010), and the sanctionable conduct may have 24 been due entirely to counsel s personal irresponsibility and 25 afforded no strategic advantage to appellants. 11 While a district In this See Dodson, 86 1 F.3d at 40. We also note that appellants had secured a judgment 2 and only execution of the judgment remained. 3 to allow the district court to give explicit consideration to the 4 full range of other available sanctions, after according a 5 hearing to the parties and Rawlins on the issue, and only then, 6 if necessary, effectively to dismiss the action. 7 We therefore remand CONCLUSION 8 For the foregoing reasons, the district court s final order 9 denying appellants writ of execution is VACATED and the case is 10 REMANDED for further proceedings consistent with this opinion. 11 Appellants attorney is directed to furnish a copy of this 12 opinion to his clients. 12

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