O'DONNELL v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 136

MEMORANDUM OPINION - The Pltfs third motion for sanctions, (Doc. 103 ) is GRANTED, in part, and DENIED, in part, as follows: 1.To the extent that the pltf sought default judgment, issue preclusion or some other case determinative sanction the motion is DENIED. 2. To the extent that the pltf sought attorneys fees as sanctions, the motion is GRANTED, and the pltf shall make a submission addressing the considerations relevant to the awarding of attorneys fees set forth in this opinion, on or before August 15, 2011. 3. The defense counsel may then file a response relating to the issue of calculation of fees on or before August 29, 2011. Signed by Magistrate Judge Martin C. Carlson on July 26, 2011. (kjn )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MONICA O’DONNELL,
Plaintiff
v.
PENNSYLVANIA DEPARTMENT
OF CORRECTIONS, et al.,
Defendants

:
: Civil Action No. 3:09-CV-1173
:
:
: (Magistrate Judge Carlson)
:
:
:
:
:

MEMORANDUM OPINION
I.

Statement of Facts and of The Case

This case presents a sad coda to a government service career spanning more
than three decades. Currently pending before the Court is Plaintiff Monica
O’Donnell’s third motion for sanctions against Defendants and their counsel. (Doc.
103.) This motion arises out of an extraordinary and troubling circumstance, the
unilateral decision of government defense counsel to elect to take a European
vacation at a time when counsel was scheduled for a pre-trial conference and trial
before this Court, coupled with the wholesale failure of counsel to disclose this
scheduling conflict to the Court, opposing counsel and her own supervisors for a span
of almost five months.
The background surrounding these unfortunate events can be simply
summarized. In January 2011, Gwedolyn Mosley, an attorney with more than 30 years

litigation practice experience in state government, was assigned as defense counsel
in this case. On January 20, 2011, this Court entered a scheduling order in this case.
That order provided in clear and precise terms for the following litigation schedule
in this matter:
Close of Fact Discovery:

February 14, 2011

Dispositive Motions and Supporting Briefs Due:

February 14, 2011

Local Rule 16.3 - Attorney Conference and
Exchange of Proposed Jury Instructions:
On or before:

April 11, 2011

Motions In Limine Due:

April 18, 2011

Pretrial Memoranda Due:

April 25, 2011

Proposed Jury Charge, Proposed Voir Dire Questions
and Objections to Proposed Jury Charge:
May 2, 2011
Pretrial and Settlement Conference:

May 9, 2011 at 1:30
P.M.

Trial Brief Due:

May 16, 2011

Trial:

May 23, 2011 at 9:30
a.m.

(Doc. 46.)
At the time that this order was entered, there were manifold reasons for defense

2

counsel to be particularly attentive to her professional obligations of candor, and
timeliness, in this case. At the outset, this litigation had already been plagued by
months of delay which occurred when defense counsel led a mediator and plaintiff’s
counsel to believe that this case had settled, and then permitted the court to dismiss
the case based upon this reported settlement, even though defense counsel became
aware that her clients had not agreed to settle this matter.
Moreover, at the time of the entry of this January 20, 2011, scheduling order,
defense counsel’s alleged failure to fulfill her professional responsibilities were
already the subject of two separate pending motions for sanctions, motions citing
counsel for failing to provide discovery and the failure to participate in good-faith in
settlement and mediation efforts. (Docs. 33 and 39. ) These two pending sanctions
motions were a further circumstance that called out for particular care in this case.
Indeed, because the Court had been disturbed by the prior conduct of counsel this
case, the Court took the additional step in this scheduling order of advising and
admonishing the parties that:
The Court notes that the course of this litigation has inspired some
confusion and acrimony, as reflected by the two motions for sanctions
which are now pending. In an effort to eliminate or reduce these
problems, IT IS HEREBY ORDERED THAT:
1. The Court will convene a telephonic case management conference
with the parties Wednesday, February 9, 2011, at 1:30 p.m. The
3

conference will be held telephonically, with the Plaintiff responsible for
placing the call to the Court once all parties are on the line. The purpose
of this conference is to assure that all discovery is being completed in a
timely fashion and that there is no further confusion of the type which
has inspired sanctions litigation in this case. The Defendants shall be
represented by trial counsel, and the Deputy Chief Susan Forney.
(Doc. 46.)
Thus, on January 20, 2011, defense counsel’s professional responsibilities and
her personal circumstances in this case provided her with every incentive to adopt a
path of conscientious candor with respect to both the Court, and opposing counsel.
Yet presented with a situation that called out for candor, counsel inexplicably chose
a course of continuing concealment and non-disclosure relating to a matter of vital
significance in this litigation; specifically, whether counsel intended to appear for the
pre-trial conference on May 9, 2011 and be prepared for trial on May 23, 2001, as
ordered by the court.
In fact, it is now sadly apparent to the court that defense counsel could not have
intended to appear for court, as ordered, because counsel concedes that, on January
20, 2011, when this court entered its scheduling order, she had already scheduled a
European vacation, “beginning on May 7 . . . until May 20, 2011.” (Doc. 107.)
Indeed, according to counsel she would not have returned to the United States until
May 22, 2011, the day before this trial was scheduled to commence. Thus, it is

4

entirely undisputed that, at the very time this trial was scheduled by the court, defense
counsel planned to be outside of the United States during a critical juncture in this
scheduled litigation.1
While defense counsel now admits that she planned to leave the United States
during the time when this matter was scheduled for pre-trial conference, and would
not have returned to this country until the very eve of trial, some aspects of this
longstanding overseas travel planned by defense counsel still remain shrouded in
mystery. In particular, we could not ascertain when defense counsel, in fact,
scheduled this trip which conflicted with her litigation responsibilities. There is a
singular source for this mystery and confusion – defense counsel – who reported to
With respect to this scheduling conflict defense counsel made several
representations at a June 10 sanctions hearing held by this court which we have
carefully considered, but cannot fully credit. First, defense counsel suggested at
various times in her testimony that she did not perceive a scheduling conflict
between her undisclosed vacation plans and this litigation schedule. This assertion
is not fully credible since the conflict is self evident–defense counsel planned to
be in Spain at the very time that the pre-trial conference in this case was scheduled
in Harrisburg. Second, counsel stated that she would have been prepared in any
event to try the case on May 23, 2011 upon her return from her undisclosed
vacation. This assertion is difficult to reconcile with the facts. This case presented
grave issues of individual and institutional liability for those represented by
defense counsel. Recognizing the significance of adequate representation to these
parties, we cannot fully credit counsel’s assertion that she felt that she would be
prepared to meet the needs of these clients, when she skipped the pre-trial
conference, and then took no steps in the weeks preceding the trial to prepare for
trial. We believe that counsel takes her responsibilities to her clients too seriously
to suggest that she would appear for trial without adequate preparation.
1

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this court that she made her travel plans “during the first of January,” (Doc. 107),
while claiming in pleadings filed before another judge of this court in a separate
lawsuit that she had actually scheduled her European vacation as early as November,
2010. See Green v. Sneath, No. 09-CV-154 (Doc. 74). Despite questioning from the
Court, defense counsel has never provided an adequate explanation for why she
provided two different, and contradictory, accounts of this travel to two judges of this
court.
Over the following four months after this trial schedule was set defense counsel
engaged in a pattern of non-disclosure regarding this scheduling conflict, ignoring
multiple opportunities to place the Court and opposing counsel on notice of this
scheduling conflict. Thus, on January 28, 2011, defense counsel filed a motion to
amend the pre-trial schedule which inexplicably failed to mention the fact that
counsel did not plan to be in the United States during the crucial days preceding the
scheduled trial.(Doc. 50.) We granted this motion, reflecting our willingness to work
with counsel on scheduling issues that are disclosed to the court. (Doc. 52.) Despite
this clear indication of the Court’s willingness to make timely revisions in this
scheduling order, based upon candid disclosures by counsel, defense counsel took no
action to notify us of her scheduling conflict.
Four days later, on February 4, 2011, the Court entered an order granting, in
6

part, a sanctions motion filed against defense counsel.(Doc. 53.) That opinion
sanctioned counsel for her lack of candor during settlement discussions, citing her for
her persistent failure to disclose material facts to the court and opposing counsel, and
concluded with an admonishment which spoke directly to the need for candor by
counsel, stating:
In closing, the Court will once again take the opportunity to urge the
parties to commit themselves to communicating fully, candidly, and
timely with one another, and with the Court, as this litigation moves
forward. Clearer and more fulsome communication between counsel
in this case would have helped considerably to clear up the confusion
that seems to have persisted in this matter up until this point. We
expect that the parties’ mutual commitment to greater communication
will go a long way towards ensuring an efficient and fair resolution of
this action, whether through a trial or otherwise.
(Id., p. 26.) Despite this explicit statement regarding the Court’s expectations of
candor by counsel, defense counsel persisted in her failure to disclose the fact that
she intended to travel to Europe at a time when she was scheduled for trial before
this court.
On February 18, 2011, the Court held a telephone conference with the parties
for the purpose of ensuring that the parties adhered to this pre-trial schedule. This
was the telephonic case management conference previously set by the Court, which
the Court had directed defense counsel and her supervisor to both attend. (Doc. 55.)

7

At this conference we, once again, underscored the need for candor by counsel.2
Despite these admonitions and warnings, March and April passed without any
notification from defense counsel of her own planned absence from the pre-trial
conference, or her intention to effectively abandon this litigation for the weeks
immediately preceding the May 23, 2011 scheduled trial of this case. Thus, although
defense counsel filed a series of pleadings over this two-month span, (Docs. 65, 66,
67, 68, 77 and 81), she never informed the Court or opposing counsel of her planned
absence.
Moreover as the May trial date approached, defense counsel began to
systematically default on her litigation obligations. Thus, when the plaintiff filed a
timely motion in limine, defense counsel neglected to submit any response,
compelling the court to grant the motion as unopposed. Defense counsel also failed
to file a pre-trial memorandum by April 25, 2011, as directed by the Court, and
neglected to file proposed jury instructions by May 2, 2011, as ordered by the Court.
Instead of complying with these trial deadlines, or notifying the Court of her
Defense counsel’s supervisor has now filed a declaration that confirms that
she was present when defense counsel participated in this conference call but
states that she was unable to hear the remarks of the participants in the call
because defense counsel did not place the call on a speaker phone. (Doc. 118.)
This declaration also details other difficulties experienced by defense counsel, and
reveals that defense counsel did not disclose her scheduling conflicts relating to
this May 2011 trial schedule to her own supervisor. (Id.)
2

8

impending scheduling conflict, defense counsel chose to follow an elliptical path,
which sought to delay the trial without disclosing the fact that counsel planned to
depart the United States for vacation and did not intend to address critical pre-trial
matters. This course of conduct commenced on May 2, 2011 at 6:47 p.m., when the
Court received a motion for stay from the defense counsel, (Doc. 86), which sought
to stay filing deadlines previously set by the court on February 1, 2011, many of
which had already lapsed without action by defense counsel.
On May 3, 2011, we denied this request, noting that defense counsel’s request
was untimely, and was opposed by the plaintiff, who had complied with this
litigation schedule. (Doc. 87.) We then instructed the parties as follows: “Therefore,
the motion is DENIED without prejudice to the parties further discussing a timetable
for litigation of claims at the pre-trial conference scheduled on May 9, 2011 at 1:30
p.m. In the meanwhile the defendants shall forthwith comply with the schedule set
by the court on February 1, 2011.” (Id.)
This Court’s May 3 order placed counsel on notice of her responsibilities in
unmistakably clear terms. That order, which denied a motion to continue the trial
schedule, and underscored the Court’s expectation that it would be conducting a pretrial conference with all counsel in this case on May 9, 2011, plainly put defense
counsel on notice that her personal travel plans–which had been set for months and
9

entailed a departure from the United States on May 7 with a return on May 22–now
irreconcilably conflicted with her professional responsibilities in this case. In light
of this order, May 3, 2011 constituted defense counsel’s last, best opportunity for
candor with the Court.
Counsel forfeited this opportunity for honesty. Thus, counsel took no steps to
notify the Court of her impending scheduling conflict on May 4 or 5, 2011. Instead,
defense counsel waited until 3:39 p.m., on May 6, 2011–mere hours before her
scheduled departure from the United States–to file a motion captioned “Unopposed
Motion for Continuance.” (Doc. 95.) In this motion, defense counsel misstated the
position of the plaintiff with respect to this continuance request. Specifically,
notwithstanding counsel’s characterization of the motion as “unopposed”, the motion
was not, in fact, unopposed. Quite the contrary, plaintiff’s counsel opposed this
request, as he had opposed the identical request made by defense counsel on May 2,
2011. Furthermore, beyond this misleading description in the caption of this
pleading, the motion persisted in repeating claims that had been rejected by the Court
as grounds for continuance, and concealed from the Court a material fact, the fact
that defense counsel was presently en route to Spain and had no intention of

10

attending the pre-trial conference.3
Because of troubling inconsistencies in this motion, we denied this request on
May 6, 2011, and reaffirmed our expectation that all parties should adhere to our
previously set pre-trial and trial schedule. (Doc. 95.) On May 9, 2011, we then
learned, for the first time, that defense counsel had departed the United States

At the June 10 sanctions hearing held by the Court on this matter, defense
counsel attempted to justify this lack of candor by claiming that she had asked an
intermediary to find out if the Court would grant a consented-to motion for
continuance, and believed that such a motion would be granted. This explanation,
proffered by counsel, is wholly unpersuasive for the following reasons: First, it
ignores the fact that plaintiff’s counsel did not consent to this continuance motion
and had in fact opposed an identical request four days earlier, on May 2, 2011. In
light of this past history, it was entirely unrealistic for defense counsel to expect
concurrence on this belated request. Second, this explanation does not fully
explain or justify the decision to caption this tardy motion as “unopposed” when,
in fact, plaintiff’s counsel did not concur in the motion. Third, this belated post
hoc rationale does not explain the inexplicable decision of defense counsel to
continue to conceal the conflict caused by counsel’s longstanding travel plans
from the court, opposing counsel and her own supervisors. Fourth, defense
counsel’s current explanation rests entirely on multiple hearsay assertions
regarding what defense counsel thought another person said about information
allegedly conveyed from court staff. As rank hearsay, this claim will not be
considered by the Court. Finally, we note that defense counsel’s claim that she
believed she had been given permission through an intermediary to continue the
case and depart the country could easily have been confirmed through the simple
expedient of calling as a witness the person who allegedly made these inquiries on
behalf of defense counsel and then conveyed this information to defense counsel.
This person is an employee of the state, and it was uniquely within the state’s
control to call this witness. The state chose not to call this witness despite the
Court’s inquiries, permitting the Court to justifiably infer that the missing witness’
testimony would not have advanced defense counsel’s claims.
3

11

without any prior notice, explanation or excuse, and would not return to this country
until the date set for trial in this case. Defense counsel’s unilateral action forced the
continuance of this trial, delayed the resolution of this case for all parties and greatly
inconvenienced the litigants and witnesses.
Presented with defense counsel’s unannounced abandonment of this case,
plaintiff’s counsel filed a third motion for sanctions in this case. (Doc. 103.) The
court held a hearing on this motion on June 10, at which time defense counsel was
given an opportunity to explain and justify her conduct. (Doc. 116.) The parties were
then permitted to fully brief this motion, which is now ripe for resolution.
For the reasons set forth below, the motion will be granted, in part, and
defense counsel will be ordered to pay attorneys fees for the costs associated with
the plaintiff’s April and May trial preparation in this case, trial preparation that
would not have been necessary except for defense counsel’s lack of candor.
II.

Discussion

The standards governing motions for sanctions are familiar ones, in part due
to the regrettable fact that we have been compelled to re-visit these standards on
several occasions in the course of this particular litigation. With respect to such
motions, our exercise of discretion in this instance is guided by settled case law
describing the responsibilities of the court when considering sanctions against

12

parties. At the outset, it is well-settled that a district court has the inherent power to
sanction parties appearing before it for refusing to comply with its orders and to
control litigation before it. See, e.g., Tracinda Corp. v. DaimlerChrysler AG, 502
F.3d 212, 242 (3d Cir. 2007). Indeed, the inherent power of the Court to act in this
area has long been recognized by the United States Supreme Court, which has held
that:
It has long been understood that “[c]ertain implied powers must
necessarily result to our Courts of justice from the nature of their
institution,” powers “which cannot be dispensed with in a Court,
because they are necessary to the exercise of all others.” United States
v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812); see also Roadway
Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65
L.Ed.2d 488 (1980) (citing Hudson ). For this reason, “Courts of justice
are universally acknowledged to be vested, by their very creation, with
power to impose silence, respect, and decorum, in their presence, and
submission to their lawful mandates.” Anderson v. Dunn, 6 Wheat. 204,
227, 5 L.Ed. 242 (1821); see also Ex parte Robinson, 19 Wall. 505,
510, 22 L.Ed. 205 (1874). These powers are “governed not by rule or
statute but by the control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious disposition of
cases.” Link v. Wabash R. Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386,
1388-1389, 8 L.Ed.2d 734 (1962).
Chambers v. NASCO, Inc. 501 U.S. 32, 43 (1991).
Sanctions decisions rest in the sound discretion of the court and, if a district
court awards sanctions pursuant to its inherent authority, such an award may only be
reviewed for abuse of discretion, which will be found only where “the court’s
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decision rests upon a clearly erroneous finding of fact, an errant conclusion of law
or an improper application of law to fact.” In re Prudential Ins. Co. Am. Sales
Practice Litig. Actions, 278 F.3d 175, 181 (3d Cir. 2002) (quoting In re Orthopedic
Bone Screw Products Liability Litig., 193 F.3d 781, 795 (3d Cir. 1999)).
In addition to the court’s inherent authority, Rule 16(f) of the Federal Rules of Civil
Procedure also provides that upon a motion, or on its own motion, a court may issue
sanctions 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); see also Tracinda Corp., 502 F.3d at 242 (observing that
whereas sanctions imposed pursuant to court’s inherent authority generally require
finding of bad faith, Rule 16(f) contains no such requirement). Indeed,
Relying on this Rule, [courts] have imposed sanctions based upon an
attorney's failure to attend a . . . conference or abide by the order
scheduling the conference. See Univ. of Pittsburgh v. Varian Med. Sys.,
Inc., 07-491, 2008 WL 1774115 (W.D.Pa. Apr.17, 2008) (Schwab, J.)
(denying motion for reconsideration of sanctions imposed for failure to
participate in settlement conference in good faith); Karhuta v.
Boardwalk Regency Corp., 06-4902, 2007 WL 2825722, at *3 (E.D.Pa.
Sept.27, 2007) (Perkin, M.J.) (sanctions imposed for failing to
participate in settlement conference in good faith); Miller v. Unum Life
Ins. Co. of America, 05-177, 2006 WL 30000962, at *1 (E.D.Pa. Oct.
14

19, 2006) (Hart, M.J.) (sanctions imposed for failure to attend court
ordered settlement conference).
Stewart v. Moll, No. 07-1085, 2008 WL 2954737, *3 (E.D.Pa. July 31, 2008). Thus,
Rule 16 authorizes imposition of sanctions where parties fail to comply with
scheduling orders setting conferences. Grant v. Omni Health Care Systems of NJ,
Inc., No. 08-306, 2009 WL 3151322 (D.N.J. Sept. 24, 2009); Univ. of Pittsburgh v.
Varian Med. Sys., Inc., 07-491, 2008 WL 1774115 (W.D.Pa. Apr.17, 2008); Karhuta
v. Boardwalk Regency Corp., 06-4902, 2007 WL 2825722 (E.D.Pa. Sept.27, 2007).
Yet while this court doubtless has the discretion to order imposition of
sanctions in appropriate cases, the exercise of this discretion is guided by certain
basic principles. Foremost among these principles is the tenet that sanctions should
always be narrowly tailored to meet the misconduct, and should entail no greater
punishment than is reasonably necessary to address the specific wrongdoing that
confronts the court. See Klein v. Stahl, GMBH & Co., Maschinefabrik, 185 F.3d 98
(3d. Cir. 1999).This basic, but pivotal, aspect of the exercise of discretion in this
area, has been voiced in many ways. Thus, it is well established that, “[b]ecause of
their very potency, inherent powers must be exercised with restraint and discretion.
A primary aspect of that discretion is the ability to fashion an appropriate sanction
for conduct which abuses the judicial process.” Chambers v. NASCO, Inc. 501 U.S.

15

at 44-45 (citation omitted). Therefore, in exercising this authority we are cautioned
that:
[A] district court must ensure that there is an adequate factual predicate
for flexing its substantial muscle under its inherent powers, and must
also ensure that the sanction is tailored to address the harm identified.
In exercising its discretion under its inherent powers, the court should
be guided by the same considerations that guide it in the imposition of
sanctions under the Federal Rules. First, the court must consider the
conduct at issue and explain why the conduct warrants sanction.
Republic of Philippines v. Westinghouse Elec. Corp. 43 F.3d at 74.
Moreover:
[H]aving evaluated the conduct at issue, the district court must
specifically consider the range of permissible sanctions and explain
why less severe alternatives to the sanction imposed are inadequate or
inappropriate. Although the court need not “exhaust all other
sanctioning mechanisms prior to resorting to its inherent power”
(Landon v. Hunt, 938 F.2d at 450, 454 (3d Cir.1991)), the court must
explain why it has chosen any particular sanction from the range of
alternatives it has identified. See Poulis, 747 F.2d at 868 (sanctions
under Fed.R.Civ.P. 16 and 37).
Id.
In addition, in a case such as this, where the proposed sanctions sought by a
plaintiff include entry of a default judgment, or preclusion of claims, other legal
considerations guide the exercise of the court’s discretion. Decisions regarding
dismissal of actions, entry of default judgments, or preclusion of claims as sanctions
16

rest in the sound discretion of the Court, and will not be disturbed absent an abuse
of that discretion. Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.
2002)(citations omitted). That discretion, however, while broad is governed by
certain factors, commonly referred to as Poulis factors. As the United States Court
of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in
imposing sanctions which affect the substantive outcome of litigation],
we evaluate its balancing of the following factors: (1) the extent of the
party's personal responsibility; (2) the prejudice to the adversary caused
by the failure to meet scheduling orders and respond to discovery; (3)
a history of dilatoriness; (4) whether the conduct of the party or the
attorney was willful or in bad faith; (5) the effectiveness of sanctions
other than dismissal, which entails an analysis of alternative sanctions;
and (6) the meritoriousness of the claim or defense. Poulis v. State
Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).
Emerson, 296 F.3d at 190.With these basic principles in mind we turn to
consideration of the plaintiff’s third motion for sanctions.
2.

Entry of a Default or Issue Preclusion Are Not
Appropriate Sanctions Here

At the outset, while we find that counsel repeatedly erred by filing inaccurate
pleadings, by failing to timely correct those inaccuracies, and by concealing material
facts from the Court and opposing counsel, we conclude that a sanction in the form
of a default judgment or some form of issue preclusion is not warranted here. As we

17

have observed, decisions regarding whether to impose severe sanctions that resolve
the merits of a lawsuit are governed by certain factors, commonly referred to as
Poulis factors. As the United States Court of Appeals for the Third Circuit has noted:
To determine whether the District Court abused its discretion [in
dismissing a case as a sanction], we evaluate its balancing of the
following factors: (1) the extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the failure to meet
scheduling orders and respond to discovery; (3) a history of
dilatoriness; (4) whether the conduct of the party or the attorney was
willful or in bad faith; (5) the effectiveness of sanctions other than
dismissal, which entails an analysis of alternative sanctions; and (6) the
meritoriousness of the claim or defense. Poulis v. State Farm Fire and
Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).
Emerson, 296 F.3d at 190.
In this case, an assessment of these Poulis factors presents a close case
regarding whether we should impose of sanctions which would affect the outcome
of this litigation. Indeed, many of the Poulis factors would seem to call for severe
sanctions here.
At the outset, one of the principal Poulis factors–the party’s history of
dilatoriness–clearly weighs in favor of a significant sanction. This episode represents
neither an isolated lapse nor a momentary error in judgment. The non-disclosures in
this matter span months, involve numerous episodes that fall well below the level of
candor required of counsel, and entail a lack of candor in the face of repeated
18

reminders of the importance of honesty. Moreover, this misconduct occurred after
counsel had been specifically admonished and disciplined for a prior lack of candor
in this litigation, an extremely troubling circumstance.
In addition, another Poulis factor, whether the conduct of the party or the
attorney was willful or in bad faith, weighs against the defendants in this case. In this
regard, “[g]enerally, ‘[w]illfulness involves intentional or self-serving behavior.’ .
. . If the conduct is merely negligent or inadvertent, we will not call the conduct
‘contumacious.’ ” Briscoe v. Klaus, 538 F.3d 252, 262 (3d Cir. 2008). Thus, it has
been held that willfulness involves “strategic,” “intentional or self-serving behavior,”
and not mere negligence. Adams v. Trs. of N.J. Brewery Emps.' Pension Trust Fund,
29 F.3d 863, 875 (3d Cir.1994). Here, we are compelled to conclude that defense
counsel’s actions were willful, in that these actions were strategic, self-serving, and
intentional, and were designed to place greater priority on counsel’s personal
vacation plans than on her professional responsibilities to her clients and the court.
Counsel’s conduct involved multiple failures to communicate one of the most
material and basic facts in any litigation–whether a party plans to attend court. These
non-disclosures were repeated, and repeatedly arose in a context where the
importance of candor was self-evident. Moreover, these non-disclosures took place
against a backdrop of prior sanction litigation, where counsel had failed to be
19

completely candid with the court. The depth of this non-disclosure is reflected in the
fact that not only the Court and opposing counsel were misled by counsel’s actions,
defense counsel’s supervisors were also not informed of the manner in which
counsel had left this important litigation before departing on a European vacation.
(Doc. 118.)4
Further, another Poulis factor–the prejudice caused to the adversary–clearly
has relevance here and weighs against the defendants. This is a case where defense
counsel’s conduct has repeatedly harmed and prejudiced the plaintiff. In 2010,
Monica O’Donnell was prejudiced by defense counsel when her case was delayed
for months due to defense counsel’s inexplicable delay in reporting that a case which
she had led the mediator and counsel to believe was settled had not, in fact, settled.
The May 2011 trial date set by the court was intended to address the manifest
prejudice visited upon O’Donnell by this prior delay, and provide her with a prompt
trial of these claims. By heedlessly ignoring these deadlines, and concealing her
plans to depart the United States from the Court and plaintiff’s counsel, defense
counsel compelled O’Donnell to endure further delay, and suffer further harm.

Further we are compelled to observe that defense counsel had been
separately sanctioned by another judge of this court for similar misconduct
occurring in 2010, a further factor which rebuts a claim of mere inadvertence by
counsel and suggests a pattern of non-compliance. See Craig v. Kelchner, No. 071157, 2010 WL 528331 (M.D. Pa. Feb. 11, 2010)
4

20

While these Poulis factors all call for significant sanctions, examination of the
remaining

Poulis considerations prevents us from imposing a sanction that

determines the outcome of this litigation. First, taking into account the initial Poulis
factor– the extent of the party's personal responsibility–there is no indication that the
individual and institutional defendants were personally responsible for this
misconduct. Indeed, counsel’s misconduct in a very real way harmed her clients’
interests, since it delayed their opportunities to resolve this case, and exposed them
to these sanctions proceedings. In this setting, where the defendants personally bear
no culpability for the conduct at issue, imposing a sanction that adversely affects
defendants’ individual and institutional rights and interests would be inappropriate.
Examining the fifth Poulis factor–the effectiveness of sanctions other than
dismissal–we find that there are other, lesser sanctions that are available here.
Therefore, this consideration also suggests that entry of a default judgment or some
form of issue preclusion would not be the proper course to follow in this case.
Finally, as to the sixth Poulis factor–the meritoriousness of the claim or
defense–we have found that many of the plaintiff’s claims were subject to dismissal
as a matter of law. With respect to the remaining claims, we recognize that there are
substantial arguments that can be made by the defense concerning the merits of these
claims. Indeed, we have set this matter for trial, and we believe that the case should
21

therefore be permitted to proceed to a resolution of these claims on their merits,
rather than through sanctions litigation.
Thus, notwithstanding the significant, intentional and repeated nature of this
misconduct we find that a dispassionate assessment of the Poulis factors leads us to
conclude that entry of a default judgment or preclusion of defenses would not be
appropriate here.
2.

Monetary Sanctions Are Appropriate Here

Instead, in this case we conclude that the appropriate sanction would be an
award of attorneys fees for the plaintiff’s counsel for his time spent needlessly
preparing for trial in May, 2011, as well as his time committed to this sanctions
motion litigation.
In reaching this conclusion, we recognize that it is well-settled that a district
court has the inherent power to sanction parties appearing before it for refusing to
comply with its orders and to control litigation before it. See, e.g., Tracinda Corp.
v. DaimlerChrysler AG, 502 F.3d 212, 242 (3d Cir. 2007). Indeed, the inherent
power of the Court to act in this area has long been recognized by the United States
Supreme Court, which has held that: “Courts of justice are universally acknowledged
to be vested, by their very creation, with power to impose silence, respect, and
decorum, in their presence, and submission to their lawful mandates. Anderson v.
22

Dunn, 6 Wheat. 204, 227, 5 L.Ed. 242 (1821).” Chambers v. NASCO, Inc. 501 U.S.
32, 43 (1991). When a district court awards sanctions pursuant to its inherent
authority, that sanction decision will only be reviewed for abuse of discretion, which
will be found only where “the court’s decision rests upon a clearly erroneous finding
of fact, an errant conclusion of law or an improper application of law to fact.” In re
Prudential Ins. Co. Am. Sales Practice Litig. Actions, 278 F.3d 175, 181 (3d Cir.
2002) (quoting In re Orthopedic Bone Screw Products Liability Litig., 193 F.3d 781,
795 (3d Cir. 1999)).
In addition to the court’s inherent authority, Rule 16(f) of the Federal Rules
of Civil Procedure also provides that upon a motion, or on its own, a court may issue
sanctions if a party or its attorney fails to appear at a scheduling or other pretrial
conference; is substantially unprepared to participate – or does not participate in
good faith – in the conference; or fails to obey a scheduling or other pretrial order.
Fed. R. Civ. P. 16(f); see also Tracinda Corp., 502 F.3d at 242 Indeed, it is wellsettled that Rule 16 “is the usual vehicle for imposing coercive or punitive sanctions
in these circumstances.” Taberer v. Armstrrong World Indus., Inc., 954 F.2d 888,
892, n.3 (3d Cir. 1992)(emphasis added).Thus, Rule 16 expressly authorizes
imposition of sanctions in a situation such as this where counsel failed to abide by
court orders. See e.g., Lease v,. Fishel, 712 F.Supp.2d 359 (M.D. Pa. 2010); Grant
23

v. Omni Health Care Systems of NJ, Inc., No. 08-306, 2009 WL 3151322 (D.N.J.
Sept. 24, 2009); Univ. of Pittsburgh v. Varian Med. Sys., Inc., 07-491, 2008 WL
1774115 (W.D.Pa. Apr.17, 2008).
Yet while Rule 16 gives the court the discretion to sanction failures by
Defendants to comply with scheduling orders, this discretion is guided by certain
basic principles. Foremost among these principles is the tenet that sanctions should
always be narrowly tailored to meet the misconduct, and should entail no greater
punishment than is reasonably necessary to address the specific wrongdoing that
confronts the court. See, Klein v. Stahl, GMBH & Co., Maschinefabrik, 185 F.3d 98
(3d. Cir. 1999).Therefore, in exercising this authority we are cautioned that: “ In
exercising its discretion under its inherent powers, the court should be guided by the
same considerations that guide it in the imposition of sanctions under the Federal
Rules. First, the court must consider the conduct at issue and explain why the
conduct warrants sanction.” Republic of Philippines v. Westinghouse Elec. Corp. 43
F.3d at 74. Moreover, “having evaluated the conduct at issue, the district court must
specifically consider the range of permissible sanctions and explain why less severe
alternatives to the sanction imposed are inadequate or inappropriate.” Id.
Applying these principles we find that a narrowly tailored sanction consisting
of an attorneys fees award to plaintiff’s counsel for the time spent needlessly
24

preparing for trial in May, 2011, as well as his time committed to this sanctions
motion litigation is appropriate here. Such a sanction is legally warranted, and
factually justified here, where the actions of defense counsel ignored court
scheduling orders, involved material non-disclosures, delayed the trial of this case
on its merits, and occurred after sanctions had previously been imposed on counsel
for prior non-disclosures in the course of this litigation. In fact, it is entirely fitting
that the sanction in this case consist of reimbursement of counsel fees for the time
lost by plaintiff’s counsel preparing for a May trial that defense counsel knew would
never occur. Defense counsel was uniquely capable of avoiding this cost and
expense entirely through the simple step of engaging in candor with the Court and
opposing counsel. Since this needless cost is directly related to defense counsel’s
calculated non-disclosures, it constitutes the proper measure of sanctions for those
non-disclosures.
In reaching this conclusion we have specifically considered, but rejected, the
idea that we could properly exercise our discretion by electing to simply impose a
nominal monetary sanction on a party whose conduct may warrant some penalty. See
Skinner v. E.I. Du Pont De Nemours and Co., No. 07-384, 2009 WL 783329 (D.Del.
March 25, 2009)(imposing nominal sanctions). The sad truth is that we have already
employed a nominal sanction in this case, to no avail. Thus, we are left with a
25

situation where counsel’s conduct compels some further sanction in the nature of
attorneys’ fees.

3.

Principles Governing Assessment of Fees as Sanctions

Having determined that attorneys fees are an appropriate sanction here, we
write briefly to address how the amount of these fees should be determined. In
setting the amount of this sanction: “The starting point for a determination of
attorney’s fees, the lodestar calculation, is the product of the number of hours
reasonably expended in responding to the frivolous paper times an hourly fee based
on the prevailing market rate.” Doering v. Union County Bd. of Chosen Freeholders,
857 F.2d 191, 195 (3d Cir. 1988); see also Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The party seeking fees bears the burden of producing “sufficient evidence
of what constitutes a reasonable market rate for the essential character and
complexity of the legal services rendered . . . .” Knight v. Drye, 2009 U.S. Dist.
LEXIS 82369 (M.D. Pa. Sept. 10, 2009) (quoting McCutcheon v. America’s
Servicing Co., 560 F.2d 143, 150 (3d Cir. 1990). See also Pennsylvania v. Delaware
Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986) (party seeking fees
has the initial burden of presenting evidence that the claimed rates and time
expended are reasonable).
26

Determining a reasonable hourly rate generally “is calculated according to the
prevailing market rates in the relevant community.”

Loughner v. Univ. of

Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001); see also Interfaith Cmty. Org. v.
Honeywell Int’l, Inc., 426 F.3d 694, 705 (3d Cir. 2005) (in most cases, the relevant
market rate is the prevailing rate in the forum of the litigation).The party seeking fees
“bears the burden of establishing by way of satisfactory evidence, ‘in addition to
[the] attorney’s own affidavits,’ . . . that the requested hourly rates meet this
standard.” Washington v. Philadelphia Cty. Ct. of Common Pleas, 89 F.3d 1031,
1035 (3d Cir. 1996) (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)).
With respect to calculating the number of hours reasonably expended, the
court “should review the time charged, decide whether the hours set out were
reasonably expended for each of the particular purposes described and then exclude
those that are ‘excessive, redundant, or otherwise unnecessary.’” Public Int.
Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995) (internal
citation omitted); see also Dellarciprete, 892 F.2d at 1183 (“The district court should
exclude hours that are not reasonably calculated.”). In general, hours are not
considered to have been reasonably expended “if they are excessive, redundant, or
otherwise unnecessary.” Id. The court may permissibly deduct hours from the fee
award if the attorney inadequately documents the hours claimed. Id.
27

Once the petitioning party has made the preliminary showing described above,
“the resulting product is presumed to be the reasonable fee to which counsel is
entitled.” Id. The burden then shifts to the party opposing the claimed fees by
making specific objections to the proposed fee by way of an affidavit or brief. Rode
v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Upon consideration of the
opposing party’s objections, the court enjoys substantial discretion to adjust the
lodestar and ultimate fee downward. Id.
In addition to the traditional lodestar analysis, we note that in the context of
sanctions litigation – unlike in the more familiar fee-shifting context where a party
is entitled to reasonable attorneys’ fees and costs as a prevailing party – the court
may only impose a sanction that represents “the minimum that will serve to
adequately deter the undesirable behavior” that precipitated the sanction. Doering,
857 F.2d at 194 (citation omitted). Further, one particularly important consideration
in determining an appropriate fee charged as sanctions is the violating party’s ability
to pay. Id. at 195. The Third Circuit explained:
A particularly relevant equitable factor is the sanctioned party’s ability
to pay. Obviously, the deterrent effect of an award of attorney's fees
depends on the extent of the sanctioned party's resources. But while a
monetary sanction, such as attorney's fees, is clearly an acceptable
choice of deterrent, courts must be careful not to impose monetary
sanctions so great that they are punitive -- or that might even drive the
sanctioned party out of practice.
28

Id. at 195-96 (footnotes omitted).

III.

Conclusion

While we find that some sanction, in the form of attorney’s fees, is appropriate
here given the serious and repeated nature of the non-disclosures by defense counsel,
we conclude this decision as we began it by expressing our regret that this conduct
becomes the coda for counsel’s three decades of government service. However, our
regret at this course of events cannot deter us from our responsibilities when
confronted by persistent misconduct in the face of explicit admonitions that candor
is required of all counsel.
Accordingly, for the foregoing reasons, IT IS ORDERED as follows:
The Plaintiff’s third motion for sanctions, (Doc. 103) is GRANTED, in part,
and DENIED, in part, as follows:
1.

To the extent that the plaintiff sought default judgment, issue
preclusion or some other case determinative sanction the motion is
DENIED.

2.

To the extent that the plaintiff sought attorney’s fees as sanctions, the
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motion is GRANTED, and the plaintiff shall make a submission
addressing the considerations relevant to the awarding of attorney’s
fees set forth in this opinion, on or before August 15, 20115.
3.

The defense counsel may then file a response relating to the issue of
calculation of fees on or before August 29, 2011.
So ordered this 26th day of July, 2011.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

The court notes that the parties are also engaged in merits litigation in this
case in August 2011. Therefore, at the request of the parties, the court will defer
these submissions until after the trial of this case, if the parties so choose.
5

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