Alexander Interactive, Inc. v. Adorama, Inc. et al

Filing 202

MEMORANDUM AND ORDER denying 173 Motion for Sanctions. The Court declines to modify or set aside any portion of the Memorandum and Order of June 26, 2014, and Ms. Savage's motion (Docket #.173) is DENIED. (Signed by Judge P. Kevin Castel on 8/14/2014) (lmb)

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DATE FILED:

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ALEXANDER INTERACTIVE INC., et al.,
Plaintiffs,

12-cv-6608 (PKC)(JCF)
MEMORANDUM
AND ORDER

-against-

ADORAMA, INC., et al.,
Defendants.

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CASTEL, U.S.D.J.
In a written opinion, Magistrate Judge James C. Francis IV "cautioned" plaintiffs
counsel, Denise Savage "that incivility among counsel will not be tolerated and that any similar
misconduct in the future will wairnnt the imposition of sanctions .... " and "admonished [her] to
abide by her duty to deal with opposing counsel with candor." Alexander Interactive, Inc. v.
Adorama, Inc., No. 12-cv-6608 (PKC)(JCF), 2014 WL 2968528, at *3-4 (S.D.N.Y. June 26,
2014) (the "Mem. & Order"). Ms. Savage has timely objected. (Docket# 173.) Having
considered the objections in their entirety, the Court concludes that there is no portion of the
Magistrate Judge's Mem. & Order that was clearly erroneous or contrary to law. Rule 72(a),
Fed. R. Civ. P.
A few additional observations are in order. Familiarity with the entirety the Mem.
& Order is assumed and, in patiicular, the e-mail of April 24, 2014, quoted therein.

A lawyer may not be admitted to practice in this Court unless she has
acknowledged familiarity with the New York Rules of Professional Conduct (the "N.Y. Rules").
Local Civil Rule 1.3(a). The Magistrate Judge correctly utilized the N.Y. Rules as a point of
reference in considering the application of the inherent power of a Court to supervise and control

proceedings pending before it. 1 In doing so, the Magistrate Judge applied a standard of which
the lawyer had notice.
Rule 8.4(d), N.Y. Rules, prohibits a lawyer from "engag[ing] in conduct that is
prejudicial to the administration of justice .... " How then, does the conduct here prejudice the
administration of justice?
The Federal Rules of Civil Procedure, the Local Rules of this Court and the
Individual Practices of the judge, independently and in tandem, require cooperation between
lawyers for clients who are adversaries in litigation. For example, Rule 26(f)(2), Fed. R. Civ. P .,
provides that "[t]he attorneys of record and all umepresented parties that have appeared in the
case are jointly responsible ... for attempting in good faith to agree on the proposed discovery
plan.... " The parties are encouraged to reach factual stipulations and explore settlement. Rule
16(c)(2)(C) & (I), Fed. R. Civ. P. "Counsel are expected to cooperate with each other, consistent
with the interests of their clients, in all phases of the discovery process and to be comteous in
their dealings with each other, including in matters relating to scheduling and timing of various
discovery procedures." Local Civil Rule 26.4. A certification is required of conferral in good
faith before seeking court action on a discovery dispute. Rule 37(a)(l), Fed. R. Civ. P. The
undersigned requires conferral on various matters, including the submission of a Joint Pre-Trial
Order. (Individual Practices iii! IC, 4B, 4C, 5, available at
http://nysd.uscourts.gov/cases/show.php?db=judge info&id=910). Without cooperation among

1

"A federal district court possesses broad inherent power to protect the administration of justice by levying
sanctions in response to abusive liligation practices." Penthouse Int'l, Ltd. v. Playboy Enters .. Inc., 663 F.2d 371,
386 (2d Cir. 1981) (citing Roadway Express. Inc. v. Piper, 447 U.S. 752 (1980)).

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lawyers for clients who are in an adversarial position, civil cases in this Comt could not proceed
to a final and just conclusion.
Ours is an adversary system. Civility among those who represent clients with
opposing interests is highly desirable and a matter of interest to Courts and the profession. See,
~,New

York State Standards of Civility, available at

https://www.nycomts.gov/press/old keep/stnds.shtml; Committee on Civility, Seventh Judicial
Circuit, 1992 Final Repmt, available at https://www.ca7.uscomts.gov/civilitv.pdf. Yet not every
act of incivility stands to prejudice the administration of justice. To prejudice the administration
of justice, the conduct must, at a minimum, pose a substantial risk of seriously impeding
cooperation between counsel without justification. The conduct at issue satisfies this standard.
Ms. Savage did not prejudice the administration of justice simply because her email employed coarse language. She did not prejudice the administration of justice because she
manifested a dislike of opposing counsel. She did prejudice the administration of justice because
she hurled a personal invective at opposing counsel ("You're an a**hole dan") and a warning or
tlU"eat ("Don't f**k me."). Ms. Savage's e-mail accused opposing counsel of"unethical
behavior" but implied that the behavior would be exposed if, but only if, counsel filed a motion
directed to her client's conduct. 2 It stated that she had recorded ce1tain conversations with
opposing counsel which she now concedes was not true.3 It is not any single phrase in the email

2

The email refers to "your unethical behavior." A threat to report misconduct presents special concerns not present
with an actual report. ABA Formal Opinion 94-383. While not every violation of the N.Y. Rules falls within the
ambit of the repot1ing requirement, knowledge ofa violation that "raises a substantial question as to that lawyer's
honesty, trustworthiness or fitness as a lawyer" must be reported Rule 8.3(a), N.Y. Rules. Where the misconduct is
not within the mandatory reporting requirements of Rule 8.3(a), a threat to report opposing counsel may be
inappropriate "if the disciplinaiy charges are not well founded in fact and in law, or if the threat has no substantial
purpose or effect other than embanassing, delaying or burdening the opposing counsel or his client, or prejudicing
the administration of justice." ABA Formal Opinion 94-383.
3
Rule 8.4(c), N:Y. Rules, prohibits a lawyer from "engag[ing] in conduct involving dishonesty, fraud, deceit or

misrepresentation .... "

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that stood to substantially impair future cooperation between counsel but the overall tone,
context and content. The communication was abusive litigation conduct violating an established
norm of professional conduct and, thus, it was conduct undertaken in bad faith.
And yet the Magistrate Judge let the matter go with a caution and admonishmerit. 4
The Judge acknowledged Ms. Savage's apology but noted that her "contrition is undercut by her
attempt to deflect blame to her adversary." Mem. & Order, at *3. This Court has examined Ms.
Savage's declaration which makes claims ofprovocations by opposing counsel and takes those
claims into account in mitigation but concludes that they do not provide justification for her
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conduct. In the realm of professional conduct, provocation is, at most, a mitigating
circumstance and not a complete defense to wrongful conduct; the same is true under the Federal
Sentencing Guidelines, U.S.S.G. § 5K2.10 (Nov. 1, 2013), and the rules of the Fifth Grade
classroom.
The Court declines to modify or set aside any pmtion of the Memorandum and
Order of June 26, 2014, and Ms. Savage's motion (Docket #.173) is DENIED.
SO ORDERED.

United States District Judge
Dated: New York, New York
August 14, 2014

4

The caution and admonishment are io the context of supervising and conb·olling the proceedings. The Mem. &
Order did not purport to impose attorney discipline which may only be imposed by the Court's Grievance
Committee. Local Civil Rule l.5{a). In the context of an attorney discipline proceeding, lawyers in this District
may be disciplined for a violation of the N.Y. Rules. Local Civil Rule l.5(b)(5).
5
The asseition is that opposiog counsel "raised his voice to very high decibels and directed me to be quiet and/or
'shut up'." Savage Deel. 'if 28; ~ itg,, id. 'if'ifl5 ("yell"), 16 ("yelled and screamed"), 19 ("decibel level"), 20
("yel)\'d, including ... 'shut up'."), 27 ("shut up"). Ms. Savage has tendered five DVDs from depositions taken in
this case with a letter which is less than helpful in locating the instances of purported misconduct. Nevertheless, the
Court has perused the videotapes and has been unable to find any substantial provocation.

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