BARTON v. MID-ATLANTIC FLOORING VENTURES INC. et al

Filing 121

OPINION. Signed by Judge Renee Marie Bumb on 1/12/2017. (tf, )

NOT FOR PUBLICATION

[Docket No. 97, 105]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PAULINE BARTON,
Plaintiff,

Civil No. 13-4592 (RMB/AMD)
OPINION

v.
MID-ATLANTIC FLOORING VENTURES
INC. d/b/a PROSOURCE OF SOUTH
JERSEY AND PROSOURCE OF RARITAN
CENTER, et al.,
Defendants.

APPEARANCES:
Robert J. Hagerty, Esq.
Hagerty & Bland-Tull Law LLC
714 East Main Street, Suite 2C
Moorestown, NJ 08057
Attorney for Plaintiff Pauline Barton
Ian D. Meklinsky, Esq.
Jonathan David Ash, Esq.
Fox Rothschild LLP
997 Lenox Drive, Building 3
Lawrenceville, NJ 08648
Attorneys for Defendants Mid-Atlantic Flooring
Ventures Inc., Aaron Bailey, and Mark Grossman

BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Reconsideration by Defendants Mid-Atlantic Flooring Ventures
Inc., Aaron Bailey, and Mark Grossman (collectively, the

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“Defendants”) [Docket No. 97], seeking reconsideration of this
Court’s August 1, 2016 Opinion and Order denying Defendants’
motion to enforce a settlement [Docket Nos. 95, 96], and the
Appeal of Magistrate Judge Donio’s August 26, 2016 Order by
Plaintiff Pauline Barton (“Plaintiff”) [Docket No. 105].

For

the reasons set forth herein, Defendants’ Motion for
Reconsideration and Plaintiff’s Appeal of Magistrate Judge
Donio’s August 26, 2016 Order are denied.
I.

BACKGROUND AND PROCEDURAL HISTORY
The underlying facts of this suit are recited in detail in

this Court’s three previous Opinions [Docket Nos. 42, 56, 95].
The Court’s August 1, 2016 Opinion [Docket No. 95], which denied
Defendants’ motion to enforce a settlement insofar as it did not
contain an agreed-upon general release, is the subject of the
instant Motion for Reconsideration.

The Court incorporates the

facts as set forth in its three previous Opinions by reference
and simply reiterates that “it is regrettable that the parties
did not reach a meeting of the minds,” as “it seems there is no
end in sight to the abject animosity between the parties and
their counsel.”

August 1, 2016 Opinion at 13 [Docket No. 95].

Most relevant to the Motion for Reconsideration, in the
August 1, 2016 Opinion, this Court found that the parties had

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not reached a meeting of the minds as to all material settlement
terms.

The Court reasoned as follows:

The Court rules that Defendants’ motion should be
denied because the parties did not reach a meeting of
the minds as to a material settlement term, the
general release. The record shows that a common
understanding and mutual assent to the general release
was lacking. Both parties rely heavily on
Mr. Hagerty’s June 22, 2015 e-mail response, but each
came to different conclusions. Defendants construe
the e-mail as Plaintiff’s acceptance of a full general
release. Plaintiff, however, states that she was
willing to agree to the “full release suggested by
Judge Donio.” As set forth in Mr. Hagerty’s prior
e-mail of March 12, 2015, it was Plaintiff’s position
that a general release was not discussed at the
conference before Judge Donio. Certainly, Mr. Hagerty
could have been more forthright in his response. Yet,
it is clear to any observer that the acrimony between
the parties had trumped any hope of that.
Moreover,
according
Plaintiff
version,”

Mr. Hagerty clarified – or reiterated,
to him – his position two days later that
had “not accepted [Defendants’] last redline
which contained the general release. . . .

Furthermore, the e-mail exchanges indicate that each
side was posturing. For example, Mr. Meklinsky’s
June 24 e-mail referred to a possible withdrawal of a
proposal. And, as noted, Mr. Hagerty’s response was
less than clear.
Id.
Defendants timely moved for reconsideration pursuant to
Local Civil Rule 7.1(i), arguing that the Court overlooked the
May 5, 2015 settlement conference with Magistrate Judge Donio
and the June 1, 2015 e-mail from Defendants’ counsel to
Plaintiff’s counsel.

Defendants also contend that this Court

should consider “new” evidence that came to light after the oral

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argument on the motion to enforce a settlement, but well before
the Court issued its Opinion.

Finally, Defendants urge the

Court to reconsider its decision to prevent manifest injustice.
On August 26, 2016, Magistrate Judge Donio issued an Order
denying, in part, and granting, in part, Defendants’ motion for
sanctions and attorneys’ fees [Docket No. 101].

The following

facts are relevant to the resolution of Plaintiff’s appeal of
the August 26, 2016 Order.
On February 19, 2016, Magistrate Judge Donio held a
settlement conference.

Defendants’ counsel and Plaintiff’s

counsel appeared in person, while Plaintiff was granted leave to
and did, in fact, appear by telephone.

At this conference,

Magistrate Judge Donio determined that it was necessary for
Plaintiff to appear in person and informed counsel that she
would reconvene the parties for a continued settlement
conference.

That same day, Magistrate Judge Donio issued a Text

Order, which read, in relevant part: “The Court shall RECONVENE
the Settlement Conference on 2/26/2016 at 2:00 PM before
Magistrate Judge Ann Marie Donio.
shall appear in person.”

Plaintiff Pauline Barton

[Docket No. 77].

On February 26, 2016, Plaintiff’s counsel and Plaintiff
failed to appear at the scheduled settlement conference.
Magistrate Judge Donio issued an Order directing Plaintiff’s
counsel to submit a letter indicating the reasons for failing to

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appear [Docket No. 78].

That day, Mr. Hagerty faxed a letter to

Magistrate Judge Donio, which reads in its entirety: “Dear Judge
Donio: I apologize deeply and profusely to the court and counsel
for my calendaring error of today.” [Ex. I, Docket No. 79-3].
Three days later, Mr. Hagerty sent another letter to Magistrate
Judge Donio, explaining that he “found the crucial email
[notifying him of the Text Order scheduling the February 26,
2016 conference], marked unread, in the trash folder.”
Docket No. 79-3].

[Ex. J,

He continued: “I have no idea how, but I

managed to unintentionally discard the email without reading
it.”

Id.
Days later, on March 2, 2016, Defendants moved for

sanctions and attorneys’ fees associated with both settlement
conferences [Docket No. 79].

Magistrate Judge Donio denied the

motion as it related to the February 19, 2016 settlement
conference.

However, Magistrate Judge Donio granted Defendants’

motion as it related to the February 26, 2016 settlement
conference and imposed sanctions, pursuant to Federal Rule of
Civil Procedure 16(f), in the form of reasonable attorneys’ fees
and expenses incurred in connection with attendance at the
February 26, 2016 settlement conference, preparation of the
motion for sanctions, and attendance at the hearing on the
motion for sanctions [Docket No. 101].
appealed that decision.

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Plaintiff timely

II.

MOTION FOR RECONSIDERATION
A. Legal Standard

In the District of New Jersey, Local Civil Rule 7.1(i)
governs motions for reconsideration.

Bembry-Muhammad v.

Greenberg, 2016 WL 6246345, at *1 (D.N.J. Oct. 24, 2016).

“The

scope of a motion for reconsideration . . . is extremely
limited.”

Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011);

accord Bembry-Muhammad, 2016 WL 6246345, at *1 (noting that a
motion for reconsideration is “an extremely limited procedural
vehicle.”).
“The purpose of a motion for reconsideration is ‘to correct
manifest errors of law or fact or to present newly discovered
evidence.’”

Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.

2010) (quoting Max’s Seafood Café ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).

If a party

establishes one of the following grounds, a judgment may be
altered or amended on reconsideration: (1) an intervening change
in the controlling law; (2) the availability of new evidence
that was not available when the court issued the subject order;
or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice.

Max’s Seafood, 17 F.3d at 677

(citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d
1194, 1218 (3d Cir. 1995)).

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Importantly, “[a] party seeking reconsideration must show
more than a disagreement with the Court’s decision, and
recapitulation of the cases and arguments considered by the
court before rendering its original decision fails to carry the
moving party’s burden.”

Panarello v. City of Vineland, 2016 WL

3638108, at *4 (D.N.J. July 7, 2016) (quoting Facteon, Inc. v.
Comp Care Partners, LLC, 2015 WL 519414, at *1 (D.N.J. Feb. 9,
2015)).

Accordingly, a motion for reconsideration “may not be

used to relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of
judgment.’”

Adams v. Republic Servs., Inc., 2014 WL 5797800,

at *1 (D.N.J. Nov. 7, 2014) (quoting NL Indus., Inc. v.
Commercial Union Ins. Co., 935 F. Supp. 513, 515-16 (D.N.J.
1996)).

“Only where matters were overlooked and which, if

considered by the Court, might reasonably have resulted in a
different conclusion, will the Court entertain such a motion.”
Bowers v. Nat’l Collegiate Athletic Ass’n, 130 F. Supp. 2d 610,
613 (D.N.J. 2001) (collecting cases).
B. Analysis
Defendants argue that reconsideration is necessary for
three reasons.

The Court will address each of Defendants’

arguments in turn.

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i. Error of Fact
First, Defendants contend that this Court overlooked
critical evidence, which, if properly considered, may have
resulted in a different outcome.

Defendants identify a May 5,

2015 settlement conference with Magistrate Judge Donio, at which
a general release was discussed, and a June 1, 2015 e-mail from
Mr. Meklinsky, Defendants’ counsel, to Mr. Hagerty, Plaintiff’s
counsel.
In its August 1, 2016 Opinion, the Court discussed the
May 5, 2015 settlement conference, noting that:
At the second conference, Plaintiff explained that she
could not agree to the general release because she
believed that she had an additional claim against
Defendant for tortious interference[.] . . . Because
the parties could not agree on the scope of the
release, which is a material term, no settlement was
reached at the conference.
August 1, 2016 Opinion at 3-4.

The Court also addressed

Mr. Meklinsky’s June 1, 2015 e-mail attaching an affidavit from
Plaintiff’s subsequent employer, which, in Defendants’ view,
defeated the viability of any tortious interference claim.
See id. at 4.
What occurred after the May 5, 2015 settlement conference
and the June 1, 2015 e-mail, however, is crucial.

As described

more fully in the August 1, 2016 Opinion, Mr. Hagerty responded
to Mr. Meklinsky on June 22, 2015, stating that as a result of
Mr. Meklinsky’s e-mail and the subsequent employer’s affidavit,

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Plaintiff was left with “no choice but to accede to the full
release suggested by Judge Donio, on the terms suggested by
Judge Donio.”

Id. at 4-5 (citing Ex. I [Docket No. 60-3]).

As

the Court previously found, “the settlement discussions quickly
deteriorated, to put it mildly.”

Id. at 5.

The subsequent

correspondence between counsel demonstrates that there was no
meeting of the minds at that time.
Two days later, Mr. Hagerty wrote: “To be clear, you have
rejected my proposal of preparing an agreement consistent with
Judge Donio’s suggestions, and we have not accepted your last
redline version.”
added).

Ex. J. at 2 [Docket No. 60-3] (emphasis

Later that day, Mr. Meklinsky responded: “your

condescending tone and attitude is only encouraging us to
withdraw our proposal to wrap this up and leave you and your
client with a patently frivolous claim and the right to appeal
what will surely be the denial of your application. . . . It’s a
take it or leave it proposition. . . . we still reserve the
right . . . to withdraw this offer of settlement.”
(emphasis added).

Id. at 1

Then, on June 26, 2015, Mr. Meklinsky

explained that “Ms. Barton has 21 calendar days to consider this
agreement and then seven days to revoke.”

Ex. L at 1 [Docket

No. 60-4] (emphasis added).
While the parties may have been approaching a settlement,
no settlement had yet been reached as there was no meeting of

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the minds.

For example, Defendants continued to state that they

could withdraw their offer of settlement.

Yet, if Plaintiff had

already accepted their offer, as Defendants now contend,
Defendants could not have withdrawn it.
meeting of the minds.

Clearly, there was no

Accordingly, reconsideration on this

ground is not appropriate, given that the Court considered the
May 5, 2015 settlement conference and the June 1, 2015 e-mail in
its August 1, 2016 Opinion and because further consideration of
the record supports the Court’s original determination.
ii. New Evidence
Defendants next argue that new evidence emerged after the
briefing and oral argument on the motion to enforce a settlement
were complete.

This purportedly new evidence is Mr. Hagerty’s

alleged admission during the February 19, 2016 settlement
conference before Magistrate Judge Donio that the matter had
settled on June 22, 2015 when Plaintiff agreed to a general
release in exchange for $1,000.

Naturally, Mr. Hagerty

vigorously contests this account.

In support of this evidence,

Defendants submit the certifications of three members of their
legal team: Jonathan D. Ash, Esq. [Docket No. 97-2], Ian D.
Meklinsky, Esq. [Docket No. 107-1], and Rachelle M. Bin, Esq.
[Docket No. 107-2], as well as Ms. Bin’s notes taken during the
February 19, 2016 settlement conference [Docket No. 107-2,
Ex. A].

Defendants also make the serious accusation that

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Mr. Hagerty has now lied in his sworn certification by denying
that such an admission was ever made.

Defs. Reconsideration

Reply Br. at 1 [Docket No. 107].
The Court is extremely troubled by the accusations made by
Defendants’ counsel against Plaintiff’s counsel.

The alleged

lack of candor both as to Plaintiff’s state of mind on June 22,
2015 and in Mr. Hagerty’s certification is most disturbing.
Unfortunately, however, the Court is not entirely surprised.
Regardless of how troubling this alleged evidence may be,
the Court finds that reconsideration is not appropriate.

First,

this evidence is not “new” evidence, as required to warrant
reconsideration.

Defendants argue that Mr. Hagerty’s alleged

admission is new evidence that should now be considered on
reconsideration because it “arose months after the hearing on
the Motion to Enforce [and] could not have been known at that
time.”

Defs. Reconsideration Reply Br. at 7-8.

Defendants

contend that the new evidence must have been unavailable or
unknown at the time of the original hearing, relying upon
DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135, 1140
(3d Cir. 1980), and Damiano v. Sony Music Entertainment, Inc.,
975 F. Supp. 623, 636 (D.N.J. 1996).
That, however, is a misstatement of the law.

Recent Third

Circuit precedent establishes that reconsideration may be
appropriate in light of the availability of new evidence that

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was not available when the court ruled upon the underlying
motion.

See, e.g., Cauler v. Lehigh Valley Hosp., Inc.,

--- F. App’x ---, 2016 WL 3383987, at *2 (3d Cir. June 20, 2016)
(quoting Max’s Seafood, 176 F.3d at 677) (reconsideration may be
appropriate if there is “new evidence that was not available
when the court granted the motion”); Allaham v. Naddaf, 635
F. App’x 32, 35 (3d Cir. 2015) (same); Van Tassel v. Piccione,
608 F. App’x 66, 70 (3d Cir. 2015) (same); U.S. ex rel. Schumann
v. Astrazeneca Pharm. L.P., 769 F.3d 837, 849 (3d Cir. 2014)
(same); see also Schock v. Baker, --- F. App’x ---, 2016 WL
6276048, at *3 (3d Cir. Oct. 27, 2016) (citing Blystone, 664
F.3d at 415) (“‘New’ evidence is evidence that could not have
been submitted to the court earlier because it was not
previously available, not merely evidence submitted following an
adverse court ruling.”); OR v. Hutner, 576 F. App’x 106, 110
(3d Cir. 2014) (“Appellants did not show that the evidence that
they submitted in support of their motion for reconsideration
was new evidence that was not available when the District Court
ruled on the underlying motions to set aside the judgment and
take discovery.”).
It appears that any evidence that arose during the February
19, 2016 settlement conference was available and could have been
specifically brought to this Court’s attention prior to its
August 1, 2016 ruling.

Defendants identify seven instances in

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which they raised Mr. Hagerty’s alleged admission, four of which
occurred after this Court had already ruled on the motion to
enforce a settlement. Defs. Reconsideration Reply Br. at 4.

The

other three were passing references in communications with and
documents submitted to Magistrate Judge Donio, not this Court.
This Court declines to reconsider its August 1, 2016 Opinion in
light of this purported evidence.
Second, even if Mr. Hagerty did in fact state at the
February 19, 2016 settlement conference that Plaintiff had
agreed in June 2015 to take $1,000 in exchange for a general
release, as Defendants aver, this would not have changed the
Court’s decision.

Evidence that, in February 2016, Mr. Hagerty

purportedly clarified his client’s state of mind from several
months prior has little to no bearing on whether there was a
meeting of the minds between the parties in June 2015.

The

correspondence between the parties after Mr. Hagerty’s June 22,
2015 e-mail clearly indicates, for the reasons set forth more
fully above and in the Court’s August 1, 2016 Opinion, that
there was no such meeting of the minds.

Mr. Hagerty’s June 22,

2015 e-mail functioned merely to renew the parties’ settlement
discussions, which rapidly and regrettably deteriorated once
again.
The Court reiterates that “[t]he scope of a motion for
reconsideration . . . is extremely limited.”

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Blystone, 664 F.3d

at 415.

Accordingly, the Court will not reconsider its previous

decision based upon disputed evidence that could have been
raised by the Defendants prior to its ruling and which, in any
case, would not have resulted in a different outcome.
iii. Manifest Injustice
Finally, Defendants argue that reconsideration is necessary
to prevent a manifest injustice, given that Plaintiff has now
filed a state court action related to the tortious interference
claim that would have been released had a meeting of the minds
occurred and had the Court granted Defendants’ motion to enforce
a settlement.
In this context, the term “manifest injustice” “means that
the Court overlooked some dispositive factual or legal matter
that was presented to it.”

Rose v. Alternative Ins. Works, LLC,

2007 WL 2533894, at *1 (D.N.J. Aug. 31, 2007).

This definition,

therefore, overlaps “with the prime basis for reconsideration,
articulated in Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909
(3d Cir. 1985), that is, the need ‘to correct manifest errors of
law or fact upon which the judgment was based.’”

Skladany v.

Provanzano, 2012 WL 5989380, at *2 n. 2 (D.N.J. Nov. 28, 2012).
The term “manifest injustice” may also be defined as it is in
Black’s Law Dictionary: “an error in the trial court that is
direct, obvious, and observable.”

Tenn. Prot. & Advocacy, Inc.

v. Wells, 371 F.3d 342, 348 (6th Cir. 2004) (quoting Black’s Law

14

Dictionary 974 (7th ed. 1999)).

Accordingly, most courts “use

the term ‘manifest injustice’ to describe the result of a plain
error.”

Brown v. Zickefoose, 2011 WL 5007829, at *2 (D.N.J.

Oct. 18, 2011) (quoting Douglass v. United Servs. Auto. Ass’n,
79 F.3d 1415, 1425 (5th Cir. 1996)).
The Court considers Plaintiff’s decision to proceed in
state court with her tortious interference claim, in spite of
the submission of her subsequent employer’s affidavit that
clearly and unambiguously refutes Plaintiff’s allegations,
baffling and disconcerting, to say the least.
vacuum, it appears to be manifestly unjust.

Considered in a

This troubling

conduct, however, is for the state court judge to address.

This

Court cannot and will not enforce a settlement that was not
reached in order to prevent Plaintiff from pursuing apparently
frivolous claims against the Defendants in state court.

The

Court did not overlook any dispositive factual or legal matters
or any newly discovered evidence in its August 1, 2016 Opinion,
and the Defendants have not identified any plain error in the
Court’s decision.

Accordingly, the Court finds that Defendants

have not demonstrated any manifest injustice warranting
reconsideration.

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III. APPEAL OF MAGISTRATE JUDGE DONIO’S AUGUST 26, 2016 ORDER
A. Legal Standard
This Court has appellate review over the orders of
magistrate judges pursuant to 28 U.S.C. § 636(b)(1)(A), Federal
Rule of Civil Procedure 72(a), and District of New Jersey Local
Civil Rule 72.1(c).

Matters referred to a magistrate judge

pursuant to 28 U.S.C. § 636(b) are subject to two standards of
review: (1) a “clearly erroneous or contrary to law” standard
for non-dispositive matters, and (2) a de novo standard for
dispositive matters.

Nat’l Labor Relations Bd. v Frazier, 966

F.2d 812, 816 (3d Cir. 1992).

An order awarding sanctions is

considered a non-dispositive matter, McCann v. Kennedy Univ.
Hosp., Inc., 596 F. App’x 140, 146 (3d Cir. 2014), and “is
reviewed for abuse of discretion.”

Tracinda Corp. v.

DaimlerChrysler AG, 502 F.3d 212, 237 (3d Cir. 2007) (citing
Saldana v. Kmart Corp., 260 F.3d 228, 236 (3d Cir. 2001)).
A ruling is clearly erroneous where, “although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.”

Anderson v. City of Bessemer City,

N.C., 470 U.S. 564, 573 (1985) (quoting United States v. United
States Gypsum Co., 333 U.S. 364, 395 (1948)).

Additionally,

“[a]n abuse of discretion is a clear error of judgment, and not
simply a different result which can arguably be obtained when

16

applying the law to the facts of the case.”

Tracinda, 502 F.3d

at 240 (quoting SEC v. Infinity Group Co., 212 F.3d 180, 195 (3d
Cir. 2000)).

“A court abuses its discretion if its decision to

impose sanctions is based upon an incorrect legal standard or
clearly erroneous factual findings.”

Id. (citing Bowers v.

Nat’l Coll. Athletic Ass’n, 475 F.3d 524, 538 (3d Cir. 2007)).
“A ruling is ‘contrary to law’ when the magistrate judge has
misinterpreted or misapplied the applicable law.”

Romero v.

Ahsan, 2015 WL 5455838, at *3 (D.N.J. Sept. 16, 2015) (citing
Pharm. Sales & Consulting Corp. v. J.W.S. Delavau Co., 106 F.
Supp. 2d 761, 764 (D.N.J. 2000)).
As the party filing the appeal, the Plaintiff bears the
burden of demonstrating that Magistrate Judge Donio’s decision
was clearly erroneous, an abuse of discretion, or contrary to
law.

Supernus Pharm., Inc. v. Actavis, Inc., 2014 WL 654594,

at *1 (D.N.J. Feb. 20, 2014) (citing Montana v. Cty. Of Cape May
Bd. of Freeholders, 2013 WL 5724486, at *1 (D.N.J. Oct. 18,
2013)).

“Unless that burden is met, the magistrate judge’s

findings should not be rejected even if the district court could
have decided the matter differently.”

Evans v. Employee Ben.

Plan, 2007 WL 77325, at *1 (D.N.J. Jan. 8, 2007) (citing Andrews
v. Goodyear Tire & Rubber Co., 191 F.R.D. 59, 68 (D.N.J. 2000)
(“A district judge’s simple disagreement with the magistrate
judge’s findings is insufficient to meet the clearly erroneous

17

standard of review.”); Toth v. Alice Pearl, Inc., 158 F.R.D. 47,
50 (D.N.J. 1994)).
B. Analysis
“Federal Rules of Civil Procedure 16(a) through (e) set
forth standards for pretrial conferences, case management, and
scheduling orders.

Rule 16(f) . . . authorizes sanctions for

violation of pretrial orders issued pursuant to this Rule.”
Tracinda, 502 F.3d at 241.

Sanctions under Rule 16(f) may be

imposed based upon the misconduct of either a party or her
attorney.
Specifically, Rule 16(f)(1) provides:
[o]n a motion or on its own, the court may issue any
just orders, including those authorized by Rule
37(b)(2)(ii)-(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial
conference;
(B) is substantially unprepared to participate--or
does not participate in good faith--in the conference;
or
(C) fails to obey a scheduling or other pretrial
order.
Fed. R. Civ. P. 16(f)(1).

Moreover, under Rule 16(f)(2),

[i]nstead of or in addition to any other sanction, 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

18

justified or other circumstances make an award of
expenses unjust.
Fed. R. Civ. P. 16(f)(2) (emphasis added).
“As the plain language of Rule 16(f) indicates, monetary
sanctions for noncompliance with Rule 16 pretrial orders are
required and appropriate absent a showing that the violation was
‘substantially justified’ or the award of expenses is ‘unjust’
under the circumstances of the case.”
241.

Tracinda, 502 F.3d at

The Third Circuit has explained that “[s]ubstantial

justification exists where there is a ‘genuine dispute
concerning compliance.’”

Rorrer v. Cleveland Steel Container,

564 F. App’x 642, 644 (3d Cir. 2014) (quoting Tracinda, 502 F.3d
at 241).

Additionally, in determining whether the imposition of

sanctions is unjust, courts should “consider[] the degree of the
sanction in light of the severity of the transgression which
brought about the failure to [comply].”

Id. (internal citations

omitted); accord Tracinda, 502 F.3d at 242 (“the standard we
find relevant in defining ‘unjust’ is the contrast between the
nature of the violation of Rule 16 and the impact on the parties
caused by the delay.”).

“Although a finding of bad faith is

generally required for a court to impose sanctions pursuant to
its inherent authority, no express requirement of intent or
negligence exists in the language of Rule 16(f).”

Tracinda, 502

F.3d at 242 (noting that “‘[u]njust can be variously defined as

19

‘unfair,’ ‘unreasonable,’ ‘inequitable,’ or ‘harsh.’

These

definitions do not, in and of themselves, contain a requirement
of intent or negligence.”).
Magistrate Judge Donio found that Mr. Hagerty’s excuses did
not substantially justify his failure to appear at the February
26, 2016 settlement conference and that no other reasons would
make an award of expenses for his noncompliance unjust.
26, 2016 Order at 6 [Docket No. 101].

August

Accordingly, Magistrate

Judge Donio awarded reasonable expenses against Mr. Hagerty for
failure to appear at the Court-ordered conference, pursuant to
Rule 16(f)(2), which mandates such an award absent a finding
that the award would be unjust or the noncompliance was
substantially justified.
Plaintiff now argues that Magistrate Judge Donio’s decision
should be overturned as an abuse of discretion and contrary to
law because Mr. Hagerty’s failure to appear at the conference
was the result of “nothing more than a mistake.”
Br. at 11 [Docket No. 105-1].

Pl. Appeal

Specifically, Plaintiff contends

that “it would be unjust to sanction Plaintiff’s counsel for an
unfortunate technological flaw which lead to his failure to
appear for the conference.”

Id. at 13-14.

Then, without

support, Plaintiff claims that “[s]anctions are only warranted
for a party or an attorney who establishes a blatant disrespect
and disregard for the court as evidenced through multiple

20

instances of failures to comply with court’s orders.”
Id. at 14.
Plaintiff’s argument fails.

As previously stated, Rule

16(f) does not require a finding of intent or even negligence
before awarding reasonable expenses against a noncompliant party
or attorney.

Tracinda, 502 F.3d at 242.1

In addition, the cases

relied upon by Plaintiff are distinguishable.

Plaintiff largely

relies upon two opinions previously issued by this Court:
Presidential Lake Fire & Rescue Squad, Inc. v. Doherty, 2014 WL
318330 (D.N.J. Jan. 29, 2014) and Grant v. Omni Health Care Sys.
of NJ, Inc., 2009 WL 3151322 (D.N.J. Sept. 24, 2009), aff'd 427
F. App’x 156 (3d Cir. 2011).
As a preliminary matter, both decisions were considered and
distinguished by Magistrate Judge Donio.
Order at 6 n. 3.

See August 26, 2016

In any case, nothing in these opinions

indicates that Magistrate Judge Donio’s decision was an abuse of

1

Plaintiff attempts to distinguish Tracinda from the case
at bar, stating that “the circumstances here are markedly
different from those in Tracinda. Here, the email error was
unknown to plaintiff’s counsel, and there was absolutely no
intent to disregard this Court. In contrast, production of
relevant documents on the last day of a complex trial implies
that the attorney in Tracinda knew exactly what he or she was
doing.” Pl. Appeal Br. at 15. This, too, misses the point. As
a preliminary matter, as Magistrate Judge Donio and this Court
have explained, the Tracinda court specifically held that
expenses may be awarded pursuant to Rule 16(f) in the absence of
intent or negligence. 502 F.3d at 242. Moreover, the Tracinda
court imposed significant expenses on the noncompliant attorneys
even absent a finding of negligence on their part. Id. 242-43.
21

discretion or contrary to law.

Indeed, Doherty does not even

address sanctions under Rule 16(f).

Rather, the decision only

addressed the propriety of sanctions pursuant to Rule 11.
Rule 11 “is intended to redress abusive litigation practices,”
Doherty, 2014 WL 318330, at *2 (citing Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 393 (1990)), whereas “[t]he purpose of
sanctions authorized by Rule 16(f) is to prevent the undue delay
in disposing of cases.”

Smith ex rel. El Ali v. Altegra Credit

Co., 2004 WL 2399773, at *4 (E.D. Pa. Sept. 22, 2004); accord
Newton v. A.C. & S., Inc., 918 F.2d 1121, 1126 (3d Cir. 1990)
(“The intent and spirit of Rule 16 is to allow courts to
actively manage the timetable of case preparation so as to
expedite the speedy disposition of cases.

Thus, the imposition

of sanctions for failure to comply with a settlement schedule is
entirely consistent with the purpose of Rule 16.”); see also
Tracinda, 502 F.3d at 242-43 (rejecting defendant’s argument
“that the purpose of Rule 16(f) is to punish and deter egregious
misconduct, not innocent mistakes.”).

This Court agrees with

Magistrate Judge Donio that the Doherty opinion is entirely
inapposite to the case at bar.2
In Grant, this Court imposed monetary sanctions pursuant to
Rule 16(f) upon an attorney who had repeatedly and flagrantly

2

Plaintiff claims that “[t]he lesson of this case appears
to be that this Court is amenable to forgiving a failure to
22

failed to comply with Court Orders.
at *1-12.3

See Grant, 2009 WL 3151322,

Plaintiff argues that Mr. Hagerty’s “email glitch in

this matter should be excused by the Court in this instance, as
it is a problem that could happen to anyone at least once,”
whereas, in Grant, “counsel’s sanctionable conduct was composed
of multiple offenses.”
original).

Pl. Appeal Br. at 18 (emphasis in

Plaintiff unsuccessfully made this exact argument

before Magistrate Judge Donio.
Court.

It fares no better before this

Sanctions pursuant to Rule 16(f) are not limited to the

fact pattern set forth in Grant.

Magistrate Judge Donio

considered Plaintiff’s arguments, as well as this Court’s
decision in Grant, and exercised her discretion appropriately in
awarding sanctions in the form of reasonable attorney’s fees.
Nothing in Grant supports Plaintiff’s contention that Magistrate

appear at a settlement conference when there is no pattern of
noncompliance (as is the case here) nor inexcusable neglect.”
Pl. Appeal Br. at 17-18 (emphasis in original). This argument
is totally unavailing. The Court reiterates that Doherty
involved sanctions pursuant to Rule 11, not Rule 16(f), which is
designed to punish and deter abusive litigation practices.
Additionally, even if this Court would have decided the matter
different, which it likely would not have, “the magistrate
judge’s findings should not be rejected even if the district
court could have decided the matter differently,” unless the
findings are clearly erroneous or contrary to law. Evans, 2007
WL 77325, at *1.
3

Indeed, the conduct in Grant was so egregious that the
question before this Court was not whether sanctions should be
imposed, but rather what type of sanctions were appropriate.
23

Judge Donio’s decision was an abuse of discretion or contrary to
law.
The Court agrees with the Defendants: “Mr. Hagerty’s
unhappiness with [Magistrate Judge Donio’s decision] does not
provide grounds for an appeal.”
[Docket No. 108].

Defs. Appeal Opp. Br. at 4

Plaintiff, in essence, seeks de novo review

of Magistrate Judge Donio’s Order, which is inappropriate.
Magistrate Judge Donio’s Order imposing sanctions shall not be
disturbed unless it is clearly erroneous, an abuse of
discretion, or contrary to law.
Evans, 2007 WL 77325, at *1.

Frazier, 966 F.2d at 816;

Magistrate Judge Donio thoroughly

assessed counsel’s conduct, including Mr. Hagerty’s shifting
excuses for his failure to appear, as well as the fact that she
rescheduled the settlement conference so that Plaintiff could
appear in person along with Mr. Hagerty.
at 5-6.

August 26, 2016 Order

Ultimately, Magistrate Judge Donio exercised her

discretion and determined that Mr. Hagerty’s failure to appear
was not substantially justified and that no circumstances
existed that would make an award of expenses unjust.

Id. at 6.

Plaintiff repeatedly argues that sanctions should not be
imposed upon Mr. Hagerty for an “unfortunate error” or “honest
mistake.”

See, e.g., Pl. Appeal Br. at 9, 18.

Yet Rule 16(f)

mandates the imposition of reasonable expenses, including
attorney’s fees, for noncompliance, unless the noncompliance is

24

substantially justified or the award of expenses would be
unjust.

Fed. R. Civ. P. 16(f).

The Court reiterates that “no

express requirement of intent or negligence exists in the
language of Rule 16(f).”

Tracinda, 502 F.3d at 242.

Expenses

may be imposed under Rule 16(f) regardless of whether
Mr. Hagerty’s failure to appear was the result of negligence or
an “honest mistake.”4
Additionally, there is no dispute that Mr. Hagerty failed
to appear at the second settlement conference and, therefore,
did not comply with Magistrate Judge Donio’s Order scheduling
that conference.

Under any standard of review, Mr. Hagerty’s

noncompliance is not substantially justified.

Rorrer, 564

F. App’x at 644 (“Substantial justification exists where there
is a ‘genuine dispute concerning compliance.’”) (quoting
Tracinda, 502 F.3d at 241).

Moreover, Magistrate Judge Donio

narrowly tailored the award of expenses to those expenses
incurred in connection with attendance at the February 26, 2016

4

In any event, simply because an error is inadvertent does
not mean that it should go unaddressed. Additionally,
Plaintiff’s repeated characterization of Mr. Hagerty’s failure
to appear as an innocent and unfortunate technological error
that could have happened to anyone does not make it so. It is
undisputed that Magistrate Judge Donio adjourned and rescheduled
the February 19, 2016 settlement conference so that Plaintiff
could appear in person at a later date. Mr. Hagerty was on
notice that the settlement conference would be rescheduled and
yet still did not appear.

25

settlement conference, preparation of the partially-successful
motion for sanctions, and attendance at the hearing on that
motion.
unjust.5

Such a narrowly tailored award of expenses is not
See Tracinda, 502 F.3d at 242 (“the standard we find

relevant in defining ‘unjust’ is the contrast between the nature
of the violation of Rule 16 and the impact on the parties caused
by the delay.”).

The Court finds that Magistrate Judge Donio

properly exercised her discretion in finding that Mr. Hagerty’s
conduct and excuses for his failure to appear did not
substantially justify his noncompliance and that no other
circumstances existed that would make an award of reasonable
expenses unjust.

Accordingly, Magistrate Judge Donio’s

August 26, 2016 Order is neither an abuse of discretion nor
contrary to law and will not be disturbed.

5

In the Reply Brief, Plaintiff contends that “[t]he mistake
in awarding sanctions is best illustrated by defendants’
affidavit of fees and costs, which seeks $9,657.00 for an
inadvertently missed settlement conference.” Pl. Appeal Reply
Br. at 2 [Docket No. 114] (citing Defs. Affidavit of Reasonable
Attorneys’ Fees and Costs [Docket No. 106]). The Court notes
that Magistrate Judge Donio has not yet awarded a specific
amount in attorney’s fees and costs and the proper amount to be
awarded is not before this Court. Mr. Hagerty has had an
opportunity to submit his objections to the Defendants’
Affidavit of Fees, which will be addressed in due course by
Magistrate Judge Donio.
26

IV.

CONCLUSION

For the foregoing reasons, Defendants’ Motion for
Reconsideration is denied.

Additionally, for the reasons set

forth herein, Plaintiff’s appeal of Magistrate Judge Donio’s
August 26, 2016 Order is denied and the August 26, 2016 Order is
affirmed.

An appropriate Order shall issue on this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: January 12, 2017

27