Smith et al v. Bank of America Home Loans et al

Filing 128

OPINION AND ORDER denying 79 Plaintiffs' Motion for Sanctions for Defendants' Failure to Participate in the Mediation Conference in Good Faith. Signed by Judge John E. Steele on 12/10/2013. (MAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN T. SMITH, JONATHAN C. CALIANOS
Plaintiffs,
vs.

Case No.

2:11-cv-676-FtM-29DNF

BANK OF AMERICA HOME LOANS a
subsidiary of Bank of America, N.A.,
MORTGAGE ELECTRONIC
REGISTRATION
SYSTEMS, INC.,
Defendants.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion for
Sanctions for Defendants’ Failure to Participate in the Mediation
Conference in Good Faith (Doc. #79) filed on August 1, 2013.
Defendants filed a Response to Plaintiffs’ Motion (Doc. #80) on
August 8, 2013.
Plaintiffs Brian Smith and Jonathan Calianos assert that
sanctions should be imposed against defendants Bank of America,
N.A., Mortgage Electronic Registrations Systems, Inc., and Federal
National Mortgage Association for their conduct before and during
the mediation conference held on June 27, 2013.
On November 26, 2012, the parties convened for their first
mediation.
with

a

During the mediation, plaintiffs provided the mediator

bracket

for

resolving

the

case,

but

defendants

were

unwilling to enter plaintiffs’ desired range at that time.

The

Mediation Report indicated that the mediation was to be continued,
and a second mediation was scheduled for June 27, 2013.
Prior to the second mediation, plaintiffs contacted defense
counsel to inquire about defendants’ position and to determine if
the second mediation would be worthwhile.

Defense counsel would

not indicate whether defendants would enter into the bracket
established by plaintiffs during the first mediation session, but
encouraged plaintiffs to attend the mediation.

The mediation

proceeded as scheduled and the parties were unable to settle the
case.
Plaintiffs assert that defendants knew prior to the mediation
that they would not negotiate and had no plans to negotiate until
the Court ruled on a pending motion to dismiss. Plaintiffs contend
that such conduct amounts to bad faith, and, as a result of such
conduct, they incurred substantial travel expenses by attending the
futile mediation.
Local Rule 9.05(c) provides that “all parties, corporate
representatives,

and

any

other

required

claims

professionals

(insurance adjusters, etc.), shall be present at the Mediation
Conference with full authority to negotiate a settlement.

Failure

to comply with the attendance or settlement authority requirements
may subject a party to sanctions by the Court.”

Local Rule

9.05(c). The Case Management and Scheduling Order further provides
that the Court will sanction any party who does not attend the

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mediation and actively participate in good faith.

(Doc. #68, p.

10.) The burden is on the mediator, not the parties, to report any
conduct that falls short of a good faith effort to resolve the case
by agreement.

(Id.)

Here, the second Mediation Report states that defendants’
representatives attended the mediation, had authority to settle,
and participated in the proceeding.

(Doc. #78.)

no mention of conduct amounting to bad faith.

The report makes

Furthermore, there

is no requirement that a party disclose its position prior to
mediation. If plaintiffs wished to avoid the mediation, they could
have unilaterally requested relief from the Court.

Accordingly,

the Court finds that such conduct does not amount to bad faith.
Plaintiffs also contend that defendants were not vested in the
mediation because they failed to provide a case summary prior to
the mediation as required by the Court’s Case Management and
Scheduling Order.

Defendants concede that they inadvertently

failed to provide a case summary prior to the mediation, but assert
that their failure to do so did not prejudice the mediation.
Court agrees.

The

At the time of the second mediation, plaintiffs

should have been well acquainted with defendants’ position based on
the wealth of briefing provided by defendants throughout the case
and the prior mediation.

Furthermore, the parties used the same

mediator for both mediations so he was well-acquainted with the

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case.

Based on the foregoing, the Court finds that the evidence

presented does not support an award of sanctions.
Accordingly, it is now
ORDERED:
Plaintiffs’ Motion for Sanctions for Defendants’ Failure to
Participate in the Mediation Conference in Good Faith (Doc. #79) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2013.

Copies:
Counsel of record
Pro se parties

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10th

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