Mpala v. Funaro et al

Filing 75

RULING granting 70 Motion for Attorney Fees in the amount of $300. Such payment shall be made wihin thirty (30) days of this ruling. Signed by Judge Sarah A. L. Merriam on 11/19/15. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ZEWEE MPALA
:
:
v.
:
:
JOSEPH FUNARO, M. PITONIAK,
:
S. KLOTSCHE1 and E. RAPUANO
:
:
------------------------------x

Civ. No. 3:13CV252(SALM)

November 19, 2015

RULING ON DEFENDANTS’ MOTION FOR ATTORNEY’S FEES
Plaintiff Zewee Mpala brought this civil rights action
against defendants Joseph Funaro, Martin Pitoniak and Eric
Rapuano alleging violation of his rights under the Fourth
Amendment to the United States Constitution, pursuant to 42
U.S.C. §§1983 and 1988. The defendants have filed a Motion for
Attorney’s Fees. [Doc. #70]
Oral argument on defendants’ Motion for Summary Judgment
was held on October 30, 2015. [Doc. ##56, 66] During the
proceeding, counsel for the plaintiff2 represented that certain
materials were attached as exhibits to a memorandum filed by him

1

Plaintiff’s motion to dismiss defendant Sergeant Klotsche was
granted with prejudice on August 27, 2013. [Doc. #17]
2
Throughout this ruling, when the Court refers to “counsel for
the plaintiff,” the Court is referring to Attorney Thomas
Lengyel. Prior counsel, Attorneys John Williams and Katrena
Engstrom, appear to have been discharged by the plaintiff, but
have not moved to withdraw their appearances, for reasons that
are not apparent to the Court. Accordingly, they remain counsel
of record in this case. The matter at hand relates solely to
Attorney Lengyel, however.
1

in a related case. However, while those exhibits were referenced
in the filing, they were not in fact attached to it, and did not
appear on the docket.3 The Court therefore entered an order later
on October 30, 2015, directing counsel for the plaintiff to file
the materials as exhibits in further opposition to the motion
for summary judgment immediately. [Doc. #66] No response was
received; accordingly, Court staff sent multiple emails to
plaintiff’s counsel reminding him to file the supplemental
exhibits. After no response was received to those emails, the
Court issued an Order to Show Cause on November 5, 2015. [Doc.
#68] The Court advised counsel in this order that if the
exhibits were filed by November 6, 2015, the hearing might be
cancelled. Id.
The Court filed a separate Calendar in the docket on
November 6, 2015, regarding the Show Cause hearing, which was
scheduled for November 9, 2015. [Doc. # 69] On November 9, 2015,
the parties appeared at the hearing. Plaintiff’s counsel offered
an apology to the Court and defendants’ counsel for the
“oversight.” Counsel stated that he did not see the October 30,
2015, order; the email reminders from the Court; the November 5,
2015, Order to Show Cause; or the November 6, 2015, Calendar;

3

Specifically, counsel for the plaintiff represented that copies
of two pro se motions, allegedly drafted by the plaintiff and
filed in the criminal case underlying this civil action, were
submitted in Mpala v. Sires, 3:13CV01226(AVC).
2

until the morning of the hearing. At the Show Cause hearing,
Attorney Lengyel offered no further explanation for his failure
to file the exhibits or for his failure to respond to the
Court’s October 30 and November 5 orders.4 The Court stated at
the hearing that the Court would consider a motion for
attorney’s fees from the defendants for the costs of attending
the Show Cause hearing.
Defendants seek an award of attorney’s fees against
plaintiff for his and his counsel’s failure to comply with the
Court’s Order dated October 30, 2015, [Doc. #66] and
corresponding Order to Show Cause dated November 5, 2015. [Doc.
#68] Defendants argue that their attorney performed otherwise
unnecessary legal services, including preparation for and
attendance at the hearing on November 9, 2015, as well as the
preparation of the motion and accompanying affidavit seeking
fees. The Court agrees.
Rule 16 of the Federal Rules of Civil Procedure provides,
in pertinent part:
[I]f a party or its attorney: fails to obey a
scheduling or other pretrial order ... the court must
order the party, its attorney, or both to pay the
reasonable expenses -- including attorney’s fees -incurred because of any noncompliance with this rule,
unless the noncompliance was substantially justified

4

Plaintiff’s counsel did not bring the exhibits to the November
9, 2015, hearing but filed the exhibits later that day as
previously directed. [Doc. #72]
3

or other
unjust.

circumstances

make

an

award

of

expenses

Fed. R. Civ. P. 16(f)(1)(C)-(2). “Rule 16 provides a range of
possible sanctions running from the ‘mildest’ sanction of
requiring the offending party to compensate the victimized party
to the harshest sanctions of all, dismissal or default
judgment.” Fonar Corp. v. Magnetic Plus, Inc., 175 F.R.D. 53, 56
(S.D.N.Y. 1997) (citation omitted). Plaintiff’s counsel has made
no showing that his noncompliance with the Court’s orders was
“substantially justified” or that “other circumstances make an
award of expenses unjust.” Fed. R. Civ. P. 16(f)(2).
‘The purpose of the sanctions is three-fold: (1)
to ensure that a party will not benefit from its
own failure to comply; (2) to obtain compliance
with the particular order issued; and (3) to serve
as a general deterrent effect on the case and on
other litigants as well.’
Petrisch v. JP Morgan Chase, 789 F. Supp. 2d 437, 455 (S.D.N.Y.
2011) (quoting Fonar Corp., 175 F.R.D. at 56). “The imposition
of sanctions pursuant to Rule 16 is committed to this Court's
sound discretion.” Id. (citing Neufeld v. Neufeld, 172 F.R.D.
115, 118 (S.D.N.Y. 1997)).
Defendants seek reimbursement for one hour of time at the
hourly rate of $300. [Doc. #71, Aff. Att. Kevin Shea ¶¶3-5] The
sole reason that the hearing was necessary was that counsel for
the plaintiff failed to comply with the Court’s orders or to
respond in any way to the Court’s attempts to contact him. The
4

Court finds, pursuant to Rule 16(f) and the Court’s inherent
authority to set schedules and regulate ligation, that the
request for attorney’s fees in the amount of $300 is both
reasonable and appropriate.
Further, the Court finds the lack of compliance with the
Court’s orders was due to the conduct of counsel, rather than
the plaintiff himself. These costs, therefore, shall be paid by
plaintiff’s counsel and shall not be passed on to his client.
Counsel for the plaintiff will pay defendants’ counsel three
hundred dollars ($300) in costs and fees. Such payment shall be
made within thirty (30) days from this order.
For the reasons stated, defendants’ Motion for Attorney Fees
[Doc. #70] is GRANTED in the amount of $300.
SO ORDERED at New Haven, Connecticut, this 19th day of
November, 2015.
______/s/____________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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