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Yashuk v. United States

United States District Court, E.D. Missouri, Eastern Division

November 5, 2019

CAROL A. YASHUK, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the parties' consent motion for extension of time to complete ADR and response to this Court's Order to Show Cause. Doc. 21. For the following reasons, the Court will grant the parties' consent motion for extension of time to complete ADR and will impose monetary sanctions on counsel for both plaintiff Carol A. Yashuk and defendant United States of America.

         I. Background

         The parties' Proposed Scheduling Order filed October 1, 2018 stated this case was “appropriate for alternative dispute resolution.” Doc. 5 at 2. On May 1, 2019, the Court referred this case to ADR and ordered the conference to be concluded before July 1, 2019. Doc. 9. Plaintiff's attorney Mr. Robert Earl Wann, III, was designated as lead counsel. Id. at 2. The referral Order states in pertinent part:

All deadlines must be complied with in a timely fashion and the appropriate forms filed with the Clerk of the District Court. If a deadline cannot be met, the designated lead counsel shall file a motion requesting an extension of the deadline prior to the expiration of that deadline. Noncompliance with any deadline set herein by this Court may result in the imposition of sanctions upon the appropriate party or parties.

Id. at 3 (emphasis in original). The referral Order further states: “The Court may impose sanctions for any willful or negligent failure of a party, its representative, or counsel to comply with deadlines, proceed, or participate in good faith in accordance with this Order and the Local Rules concerning Alternative Dispute Resolution.” Id. at 3.

         On May 13, 2019, plaintiff filed a consent motion to extend the ADR deadline to July 12, 2019, which the Court granted. Docs. 10, 12. On July 1, 2019, the government filed a consent motion to extend the ADR deadline to August 9, 2019, which the Court granted. Doc. 14, 15. The ADR Compliance Report was due on August 23, 2019. Doc. 15. The parties failed to comply. On August 26, 2019, the Clerk issued a Notice of Noncompliance, which stated that a written motion requesting an extension of time to file the ADR Compliance Report must be filed within five days. Doc. 16. On August 29, 2019, the government filed a consent motion to extend the ADR deadline to October 1, 2019, which the Court granted. Docs. 17, 18. The ADR Compliance Report was due on October 15, 2019. Doc. 18. For a second time, the parties failed to comply. On October 16, 2019, the Clerk issued a Notice of Noncompliance, which stated that a written motion requesting an extension of time to file the ADR Compliance Report must be filed within five days. Doc. 19. The parties failed to file a motion for extension of time as directed.

         On October 25, 2019, at the Court's discretion and as a courtesy, the Clerk called and left a voicemail for plaintiff's counsel, Mr. Wann, and defense counsel, Mr. Steven Luther. On October 26, 2019, after having received no response, the Clerk again called plaintiff's counsel, who informed the Clerk that the parties did not participate in mediation and would need an extension of time. Mr. Wann stated Mr. Luther was supposed to file the motion for extension. Neither counsel filed a motion for extension of time, however.

         On October 29, 2019, the Court issued an Order to Show Cause in writing why monetary sanctions should not be imposed against lead counsel, Mr. Wann, for failure to comply with the Court's order referring the case to alternative dispute resolution. Doc. 20. The Order stated that a failure “to show good cause may result in the imposition of monetary sanctions against Mr. Wann and/or dismissal of this case with or without prejudice.” Id. (citing Rule 41(b), Fed. R. Civ. P.). Mr. Luther then filed the instant consent motion for extension of time to complete ADR and response to order to show cause. The parties offered the following reason for non-compliance: “[C]ounsel for Defendant [Assistant U.S. Attorney Steven Luther] offered to prepare a consent motion to extend time for mediation given that the conflict arose from defense counsel's calendar. Unfortunately, as a result of other case obligations, counsel for Defendant erroneously failed to prepare the consent motion.” Doc. 21 at 2. The parties' response offers no explanation for why Mr. Wann, as lead counsel, did not remedy Mr. Luther's error by promptly filing a motion for extension of time to complete ADR after having been ordered to do so. On November 4, 2019, Mr. Wann refiled the parties' consent motion for extension of time to complete ADR and response to order to show cause using his own Case Management/Electronic Case Filing (CM/ECF) log-in and password. Doc. 22.

         II. Discussion

         A. Imposition of Sanctions

         Federal Rule of Civil Procedure 16(f)(1)(C) allows a district court to sua sponte issue sanctions “if a party or its attorney . . . fails to obey a scheduling or other pretrial order.” See Nick v. Morgan's Foods, Inc., 99 F.Supp.2d 1056, 1059-60 (E.D. Mo. June 8, 2000), aff'd, 270 F.3d 590 (8th Cir. 2001) (“The Court's authority to enforce its [ADR] orders by imposing sanctions is founded upon the Federal Rules of Civil Procedure and a district court's inherent authority to manage the progress of litigation.”).

         Whether to issue such sanctions “is entrusted to [a] district court's sound discretion.” United States v. Eleven Million Seventy-One Thousand One Hundred & Eighty-Eight Dollars & Sixty-Four Cents ($11, 071, 188.64) in U.S. Currency, 2016 WL 3144679, at *2 (8th Cir. June 6, 2016). The factual question is “whether the evidence supports the chosen sanction.” Id. (quotation marks and citation omitted). A district court's factual determinations supporting the issuance of sanctions, including its determination that a party “willfully disregarded court orders, ” will be upheld absent clear error. Schubert v. Pfizer, Inc., 459 Fed.Appx. 568, 572 (8th Cir. 2012) (unpublished per curiam) (quoting Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998)).

         The Court has carefully considered the circumstances of the matter as set forth in the parties' response to the Show Cause Order. While counsel focus on Mr. Luther's failure to file a timely motion for extension in October 2019 and argue this was due to an error and not a lack of diligence on the part of the parties in pursuing the ADR referral, the Court disagrees. The Court has issued two Notices of Non-Compliance in this case for failure to comply with the Court's ADR referral. Docs. 16, 19. After the Court granted three motions by the parties for extension of time to complete mediation, the ADR Compliance Report was due on October 15, 2019. Doc. 18. A Notice of Noncompliance was issued on October 16, 2019, directing the parties to file a motion for extension by October 21, 2019. As has been their ...


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