Scheduling orders govern the lives of most litigating attorneys, and few would question the need to obey the deadlines contained therein. Those attorneys who do feel compelled to treat scheduling orders with a blasé attitude, however, should take note of a recent case out of the U.S. District Court for the Southern District of New York, in which the court had no hesitation (and considerable enthusiasm) in imposing Rule 16 sanctions on an insouciant attorney and his firm.
In Rice v. NBCUniversal Media, LLC, No. 19-CV-447, 2019 WL 3000808 (S.D.N.Y July 10, 2019), the court’s opinion and order represented the “latest contribution” to a “growing body of law . . . devoted to the question of whether and when to impose sanctions on Mr. Liebowitz alone.” Liebowitz had incurred the ire of the court by failing to comply with deadlines on the scheduling order, including mediation and pretrial conferences, and attempting to cover his behavior with a “(literal) 11th hour request.”
In evaluating the appropriateness of sanctions, the court considered both Rule 16:
The Court begins with Rule 16. Rule 16(f) authorizes sanctions for, among other things, the “fail[ure] to obey a scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C).
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The Court has no trouble making that finding here.
and its inherent power to punish attorneys for bad-faith conduct:
The Court also imposes sanctions for Liebowitz’s failure to comply with the Court’s orders pursuant to the Court’s inherent power to award sanctions. “[D]istrict courts have the inherent power” to sanction a party “for bad faith conduct violating the court’s orders . . . . Neither is a federal court forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute or the Rules.” (internal quotes and citations omitted).
Under both standards, the court found that sanctions were more than justified, as Liebowitz’s behavior was “not isolated but rather part of a pattern of non-compliance in this case and others.” Accordingly, the court entered an award of attorney fees against Liebowitz—approving of full, New York City partner rates.
Granted, most attorneys would not dream of flouting a scheduling order to the extent displayed in NBCUniversal Media (and the “growing body of law” recognized by the court). However, NBC Universal Media is a useful reminder of the peril an attorney undergoes when a judge believes that lack of diligence has crossed the line into willful behavior.
James Simon is an associate in the law firm of Spilman Thomas & Battle, PLLC in Charleston, West Virginia.