Kahama VI, LLC v. HJH, LLC et al

Filing 271

ORDER: Plaintiff's Motion for Costs, Contempt and Sanctions against Defendant John Bahng Regarding Recent Mediation (Dkt. #260) is DENIED. Signed by Judge James S. Moody, Jr on 3/20/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

KAHAMA VI, LLC,
Plaintiff,
v.

Case No: 8:11-cv-2029-T-30TBM

HJH, LLC, ROBERT E.W. MCMILLAN,
III, WILLIAM R. RIVEIRO, JOHN
BAHNG, HOWARD S. MARKS, OLD
REPUBLIC NATIONAL TITLE
INSURANCE COMPANY and KEVIN
PATRICK DONAGHY,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Plaintiff's Motion for Costs,
Contempt and Sanctions against Defendant John Bahng Regarding Recent Mediation (Dkt.
#260) and Defendants' Response in Opposition to the Motion (Dkt. #266). Upon review
and consideration, it is the Court’s conclusion that the Motion should be denied.
Plaintiff brings this Motion against Defendant John Bahng for his failure to attend
a court-ordered mediation. The Court previously ordered mediation in this case on
February 12, 2013, (Dkt. #37). Bahng filed an emergency motion to appear telephonically
on the following bases: (1) the mediation was premature, (2) he lives and works in Asia,
and (3) he granted another Defendant, Robert E.W. McMillan, authority to execute any
settlement on his behalf. The Court granted Bahng’s Motion on the condition that “[i]f

the parties do not settle at mediation on February 12, 2013, the Court will entertain motions
for Defendant John Bahng to bear the costs of another mediation conference if later
ordered.” (Dkt. #58). The mediation resulted in an impasse.
The Court entered a second order referring the parties to mediation on January 17,
2014, to take place on March 6, 2014, before the Honorable Michael Williamson (Dkt. #
239). The order required that all defendants appear in person. Paragraph 4 of the order
stated in pertinent part:
Each party shall attend the mediation with counsel and with the individual
client or with a corporate client representative with full and absolute
authority to agree to a mediated settlement. If an impasse is reached with
respect to the mediation as a result of the failure of a party to comply with
this requirement, such party shall be liable for sanctions to include payment
of all fees incurred by the other parties to this proceeding in connection with
the mediation.
The second mediation also resulted in an impasse. Judge Williamson filed a
mediation report indicating that Bahng appeared at the mediation by telephone and was not
able to appear in person due to “flight problems.” Judge Williamson further stated that the
impasse was not due to Bahng’s failure to appear in person. Bahng did not file a motion to
appear by phone prior to the second mediation.
Plaintiff requests that the Court strike Bahng’s pleadings and enter a default against
him. Further, it seeks costs and attorney’s fees associated with the second mediation
including $1,033.90 for flight expenses and lunch for the mediation and $1,350.00 (4.5
hours at $300.00/hour) in attorney’s fees for preparing and filing this Motion. Defendant’s
response in opposition states that Bahng “apologizes for not being able to make the trip”
and argues that since his absence was not the cause of the impasse, no party was prejudiced.

2

Regardless of monetary sanctions as a result of a violation of a court order,
mediation disputes, standing alone, do not warrant striking of Defendant’s pleadings. See
Inmuno Vital, Inc. v. Telemundo Group, Inc., 203 F.R.D. 561 (S.D. Fla. 2001) (Monetary
sanctions, rather than striking of pleadings, was appropriate sanction when party appeared
at mediation session accompanied by adjuster for insurer who did not have authority to
settle suit, in violation of court order.) The drastic sanctions of dismissal or default are
warranted only on a clear record of delay or willful contempt. Mingo v. Sugar Cane
Growers Co-op. of Fla., 864 F.2d 101, 102 (11th Cir. 1989). Since Bahng appeared by
phone and was not the cause for the impasse at the mediation, the Court concludes that
striking of pleadings and default against him are not justified under these circumstances.
Regarding monetary sanctions, Bahng had notice that he may be subject to sanctions
for failure to appear at the second mediation due to the Court’s initial order allowing him
to appear by phone and the Court’s second order referring the parties to mediation. Bahng
has not shown good cause for his failure to appear in person.
Nonetheless, the Court’s February 12, 2013 Order contemplated the costs of a
second mediation to constitute the mediator’s fee. Since Judge Williamson conducted the
mediation, there are no mediator’s fees and the only costs remaining are Plaintiff’s travel
expenses and the cost of lunch. Since Plaintiff and its counsel would have had to appear at
the mediation regardless of Bahng’s absence, the Court denies Plaintiff’s request for costs.
Further, the Court concludes that Plaintiff is not entitled to attorney’s fees for bringing this
Motion since the Court has denied the specific relief requested.

3

It is therefore ORDERED AND ADJUDGED that:
1.

Plaintiff's Motion for Costs, Contempt and Sanctions against Defendant John
Bahng Regarding Recent Mediation (Dkt. #260) is DENIED.

DONE and ORDERED in Tampa, Florida, this 20th day of March, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2011\11-cv-2029 sanctions 260.docx

4