Rodriguez v. Miami Dade County Public Housing and Community Development

Filing 97

ORDER granting in part and denying in part 91 Motion to Compel the parties to return to mediation and for sanctions. Signed by Magistrate Judge Amanda Arnold Sansone on 6/8/2018. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NADIA RODRIGUEZ,
Plaintiff,
v.

Case No.: 8:15-cv-1621-T-23AAS

MIAMI-DADE COUNTY,
Defendant.
______________________________________/
ORDER
After denial of Miami-Dade County’s late request to have its designated representative
appear telephonically at a court-ordered mediation, Nadia Rodriguez seeks an order directing the
parties to return to mediation and for sanctions against Miami-Dade for its failure to comply with
the court’s mediation orders. (Doc. 91). Miami-Dade opposes the motion (Doc. 94), and submits
its reasons why sanctions are not warranted (Doc. 89).
I.

BACKGROUND
On April 18, 2018, the court ordered the parties to mediate by May 18, 2018. (Doc. 80).

The parties scheduled the mediation for May 16, 2018, at 9:30 a.m. (Doc. 82). The afternoon
before the mediation, Miami-Dade requested permission for its designated representative to appear
telephonically because it was more than 270 miles from Miami to Tampa and the designated
representative must remain in Miami “due to an ongoing audit process and work issues.” (Doc.
83).
The morning of the scheduled mediation, the court denied Miami-Dade’s motion for its
designated representative to appear telephonically. (Doc. 87). The order further directed, if
Miami-Dade’s designated representative did not attend the mediation in person, Miami-Dade must
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show cause why sanctions should not be imposed. (Id.). Miami-Dade’s designated representative
did not appear at the mediation so Miami-Dade responded to the order to show cause. (Doc. 89).
Subsequently, Ms. Rodriguez filed the instant motion requesting the parties return to
mediation and for sanctions against Miami-Dade, including the payment of the mediator’s fees,
attorney’s fees, and the cost of further mediation. (Doc. 91). In response, Miami-Dade consents
to payment of Ms. Rodriguez’s portion of the mediator’s fees but opposes the remaining requests.
(Doc. 94). Taken together, the gist of Miami-Dade’s responses to the order to show cause and Ms.
Rodriguez’s motion are: (1) Miami-Dade’s counsel selected a date without checking the
availability of her client (Docs. 89, p. 1; 93, pp. 1-2); (2) counsel learned that the designated
representative was unavailable too late to cancel the mediation without a $1,500.00 cancellation
fee (Doc. 89, p. 3-4); (3) only Miami-Dade’s Board of County Commissioners has “full authority
to settle” (Id. at pp. 2-3); (4) the mediation would not result in a settlement no matter who attended
(Id. at p. 3); and (5) there was no prejudice to Ms. Rodriguez because she still received a benefit
from the mediator’s efforts (Doc. 94, p. 3).
II.

ANALYSIS
The April 2018 order requiring the parties to mediate a second time expressly required the

parties’ compliance with the June 2016 mediation order. (Doc. 80). The June 2016 mediation
order requires:
Absent leave of court, which is granted only in an extraordinary circumstance, each
attorney acting as lead counsel and each party (or the designated representative with
full authority to settle) must attend the mediation in person.
(Doc. 36, p. 3).
On motion or on its own, the court may sanction a party or its attorney for failure to obey
a scheduling order. Fed. R. Civ. P. 16(f)(1)(C). The court “must order the party, its attorney, or
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both to pay the reasonable expenses—including attorney’s fees—incurred because of any
noncompliance ... unless the noncompliance was substantially justified or other circumstances
make an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2). Local Rule 9.05(c) requires all
parties to be present at a court-ordered mediation conference unless expressly excused by the
presiding judge in writing, and the failure to attend such a conference may subject a party to
sanctions.
Miami-Dade’s designated representative did not appear at the May 16th mediation due to
the distance between Miami and Tampa and “an ongoing audit process and work issues that
required her presence.” (Doc. 89, p. 1). This explanation falls short of establishing that the failure
to attend the mediation was substantially justified. The court’s mediation order clearly required
personal attendance of counsel and a designated representative with full authority to settle. In
addition, the parties mutually agreed upon the mediation date and filed the notice of mediation
twenty days prior to the scheduled mediation date. (Doc. 82). Yet, it was not until the day before
the mediation that Miami-Dade filed its opposed motion to appear telephonically. (Doc. 83).
Presumably assuming that its filed motion was sufficient but in direct violation of the court’s prior
orders, Miami-Dade’s designated representative did not attend the May 16th mediation. (Docs.
36, 80).
None of Miami–Dade’s excuses establish that the failure of their designated representative
to appear at the mediation was substantially justified, or that other circumstances make an award
of expenses unjust. See Scott v. K.W. Max Investments, Inc., No. 6:05-cv-683-ORL-18, 2007 WL
80851, *2 (M.D. Fla. Jan. 8, 2007) (granting sanctions for failure to appear at mediation in
violation of case management and scheduling order). Thus, the court “must order the party, its
attorney, or both to pay the reasonable expenses—including attorney’s fees—incurred because of
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any noncompliance.” Fed. R. Civ. P. 16(f)(2).
Ms. Rodriguez’s counsel, James Roscoe Tanner, seeks attorney’s fees in the amount of
$1,800.00 ($450.00/hr for four hours) incurred in relation to the May 16th mediation. According
to the website for The Florida Bar, Mr. Tanner has been admitted to practice law for over thirty
years and has a broad range of litigation experience. Other than saying the fees are “unjustified”
(Doc. 94, p. 3), Miami-Dade does not offer any opposition to Mr. Tanner’s number of hours or
proposed hourly rate. Therefore, Mr. Tanner’s fees will be awarded in the amount of $1,800.00.
Because the parties have already engaged in two mediations and the July 2018 trial term is
quickly approaching, further mediation would be a waste of valuable time and resources.
III.

CONCLUSION
For the foregoing reasons it is ORDERED that Ms. Rodriguez’s Motion for Order

Directing Parties to Return to Mediation and Awarding Sanctions (Doc. 91) is GRANTED IN
PART AND DENIED IN PART, as follows:
(1)

Miami-Dade shall pay Ms. Rodriguez’s share of the mediator’s fee for the May

16th mediation;
(2)

Miami-Dade shall pay Ms. Rodriguez’s attorney’s fees in the amount of $1,800.00,

for Mr. Tanner’s preparation and participation in the May 16th mediation; and
(3)

In all other respects, the motion is denied.

ORDERED in Tampa, Florida on this 8th day of June, 2018.

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