Cummerlander et al v. Patriot Preparatory Academy et al

Filing 98

ORDER denying 71 Motion for Sanctions. Signed by Magistrate Judge Terence P Kemp on 3/11/2015. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Phyllis Cummerlander, et al.,

:
Case No. 2:13-cv-0329

Plaintiffs,

:
JUDGE ALGENON L. MARBLEY

v.

:
Magistrate Judge Kemp

Patriot Preparatory Academy,
et al.,
Defendants.

:
:

ORDER
This case is before the Court to consider Plaintiffs’
motion for sanctions.

Plaintiffs filed the motion because, in

their view, Defendants did not comply with the Court’s order
regarding how the June, 2014 Settlement Week mediation conference
was to be conducted.

The motion is fully briefed.

For the

following reasons, the Court will deny the motion for sanctions.
The issue raised by Plaintiffs is whether Defendants made a
reasoned settlement offer and whether they violated the Court’s
order that all parties be present at the conference, which was
held before a volunteer attorney mediator.

Plaintiffs’ motion is

not accompanied by an affidavit or declaration as to the facts
which support the motion; the only attachment to the motion is a
copy of Defendants’ settlement week mediation position statement
(something, incidentally, not usually filed as part of the
record).

The statement is four pages in length, sets out the

facts of the case, and communicates a settlement offer with an
explanation for why that amount was appropriate.

Plaintiffs

supplemented their motion with a copy of their revised settlement
demand.
In response, Defendants filed a memorandum and an affidavit

from their counsel, D. Wesley Newhouse, which state the
following.

Defendants obtained settlement authority from the

insurer for Patriot Preparatory Academy prior to the conference.
Sean Smith, who is both a defendant and a representative of the
Academy, attended the conference along with counsel.

Plaintiffs’

counsel did raise an issue about the non-attendance of the other
defendants, all but one of whom are or were employees of the
Academy (the other defendant is a former Academy student and
classmate of Plaintiff J.T.), but proceeded with the mediation in
their absence.
The reply memorandum is accompanied by an affidavit from
Plaintiffs’ counsel, Joseph S. Tann, Jr.

Mr. Tann’s affidavit

primarily addresses issues raised in Mr. Newhouse’s affidavit
which long pre-dated the mediation conference in question and
does not shed much light on Plaintiffs’ claim that Defendants
should be sanctioned in connection with the June, 2014
conference.
Despite the absence of evidence supporting Plaintiffs’ claim
that not all of the Defendants attended the mediation, Defendants
appear to concede that fact.

They do not offer any real

explanation for the failure, or the fact that they did not advise
Plaintiffs in advance that they would not all be attending.
is at least a technical violation of the Court’s order.

That

The

Court does not see a violation in the way the response was
structured or supported, however.

Consequently, the issue is

whether it would be appropriate to sanction those Defendants who
did not attend the conference in person.
The Court does not lightly condone noncompliance with its
settlement week orders.

They are designed to insure that

meaningful negotiations take place, in an atmosphere of fairness
to all parties, and in a way that does not waste the time of the
mediators who volunteer their services to the Court and the
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litigants.

Widespread disregard of settlement week orders could

undermine the entire process.

Sanctions are a way to enforce

general deterrence against parties’ choosing, for their own
reasons and without reference to the Court-ordered requirements
or the need to ask for advance permission, not to follow the
rules.
On the other hand, the point of the Court’s order is to
maximize the chance that a meaningful mediation will occur.

It

is true that the Court cannot know with certainty that the
failure of a party to attend a mediation conference was
inconsequential in terms of whether meaningful discussion
occurred, but in some cases, that is a fair inference to be
drawn.

Here, given the magnitude of the difference in the

parties’ positions, and the fact that the demand was lodged
against the Defendants, collectively, the failure of some
individual defendants to attend in person seems unlikely to have
affected the outcome of the conference.
Courts which have imposed severe sanctions for violations of
mediation orders usually point to repeated misconduct or evidence
of bad faith as a justification for such sanctions, such as when
a party unilaterally “cancels” a mediation scheduled by the
Court, see Empire, Inc. v. Wal-Mart Stores, Inc., 188 F.R.D. 478
(E.D. Ky. Aug. 9, 1999) or consistently fails to abide by
mediation orders, see Raad v. Wal-Mart Stores, Inc., 1998 WL
272879 (D. Neb. May 6, 1998), or when a party attempts to get the
mediation order modified and, when unsuccessful, chooses not to
comply anyway.

See Universal Cooperatives, Inc. v. Tribal Co-op.

Marketing Development Federation of India, Ltd., 45 F.3d 1194
(8th Cir. 1995).

While it is true that sanctions for violation

of a court order do not depend on a finding of bad faith, that is
one factor to be considered in determining if sanctions are
needed, as is the prejudice to the opposing party.
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This is an admittedly close case.

Defendants’ sole excuse

for not complying with the mediation order (Doc. 64,
incorporating the language in Doc. 65), which expressly states
that “[e]ach party ... must attend” is that Plaintiffs “have
identified no reason why each of the Defendants needed to be in
attendance at the mediation ....”

Doc. 73, at 2.

Complying with

a court order is certainly a reason, and Defendants have not
justified their noncompliance.

However, the Court’s order also

states that “any failure to comply with those requirements which
results in the needless expenditure of the resources of the
opposing party” (emphasis supplied) will result in sanctions.
That does not appear to have happened.

Given that parties in

this Court generally comply with the mediation orders issued by
the Court, and that some of the Defendants (who, again, received
a settlement demand as a group rather than individually),
attended and participated in a mediation that was very unlikely
to produce either a settlement or even any significant movement
on either side, the Court chooses not to award sanctions at this
time.

In the future, however, these and other parties who fail

to honor the Court’s mediation orders may well face sanctions if
for no other reason than to discourage such behavior and to
uphold the integrity of the Court’s orders.
For these reasons, the motion for sanctions (Doc. 71) is
denied.
Motion for Reconsideration
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections

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are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge

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