Westbrook v. Dallas County, Texas et al

Filing 56

MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part Plaintiff's Motion for Sanctions for Violation of Mediation Order [Dkt. No. 40 ]. Plaintiff may file an application for his reasonable expenses. But Northern Distri ct of Texas Local Civil Rule 7.1 requires that parties confer before filing an application for attorneys' fees. Plaintiffs counsel and Defendants' counsel are therefore directed to meet face-to-face and confer about the reasonable amount of these attorneys' fees and costs to be awarded under Federal Rule of Civil Procedure 16(d)(2). This face-to-face requirement is not satisfied by a telephonic conference. Any attorneyrefusing to appear for this meeting or to confer as direct ed will be subject to sanctions. By no later than June 30, 2017, the parties must file a joint status report notifying the Court of the results of the conference. If the parties do not reach an agreement as to the amount of attorneys' fees a nd costs to be awarded to Plaintiff, Plaintiff may, by no later than July 7, 2017, file an application for attorneys' fees and costs that is accompanied by supporting evidence establishing the amount of the attorneys' fees and costs to be awarded under Rule 37(d). If an application is filed, Defendants may file a response by July 28, 2017, and Plaintiff may file a reply by August 11, 2017. (Ordered by Magistrate Judge David L. Horan on 6/9/2017) (mcrd)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAMES WESTBROOK,
Plaintiff,
V.
DALLAS COUNTY, TEXAS; JESSE
FLORES, Dallas County Sheriff’s
Executive Chief, in His Individual and
Official Capacity; and DALLAS
COUNTY SHERIFF DEPARTMENT’S
CIVIL SERVICE COMMISSION,
Defendants.

§
§
§
§
§
§
§
§
§
§
§
§
§
§

No. 3:16-cv-1802-B

MEMORANDUM OPINION AND ORDER
Plaintiff James Westbrook has filed a Motion for Sanctions for Violation of
Mediation Order, see Dkt. No. 40 (the “Sanctions Motion”), which United States
District Judge Jane J. Boyle has referred to the undersigned United States Magistrate
Judge for hearing, if necessary, and recommendation or determination under 28 U.S.C.
§ 636(b), see Dkt. No. 41. Defendants Dallas County, Jesse Flores, Chief Executive
Officer, and Dallas County Sheriff’s Department filed a response, see Dkt. No. 47, and
Plaintiff filed a reply, see Dkt. No. 48.
The Court GRANTS in part and DENIES in part Plaintiff’s Motion for Sanctions
for Violation of Mediation Order [Dkt. No. 40] for the reasons and to the extent
explained below. See generally Brown v. Bridges, No. 3:12-cv-4947-P, 2015 WL 410062,
at *1-*4 (N.D. Tex. Jan. 30, 2015) (explaining that, when a district judge refers a
-1-

motion for sanctions to a magistrate judge, the sanction chosen by the magistrate
judge, rather than the sanction sought by the party, governs the determination of
whether Federal Rule of Civil Procedure 72(a) or 72(b) applies and that, when the
magistrate judge finds that dismissal or another sanction disposing of a claim or
defense is unwarranted, the motion should be characterized as non-dispositive and may
be ruled on by the magistrate judge) (followed in Green Hills Dev. Co., LLC v. Credit
Union Liquidity Servs., LLC, No. 3:11-cv-1885-L-BN, Dkt. No. 373 at 2 (N.D. Tex. Dec.
1, 2016)).
Background
On August 16, 2016, Judge Boyle entered a scheduling order that, among other
things, required the parties to file a Joint Report informing the court of their choice of
an agreed-upon mediator by September 20, 2016. See Dkt. No. 16. The parties selected
Kathy Fragnoli, Burdin Mediation, as the mediator. See Dkt. No. 19.
Judge Boyle then entered a Mediation Order, which provided that
[t]he named parties shall be present during the entire mediation process
and each party which is not a natural person must be represented by an
executive officer (other than in-house counsel) with authority to negotiate
a settlement (the authority required shall be active, i.e., not merely the
authority to observe the mediation proceedings but the authority to
negotiate, demand or offer, and bind the party represented). Counsel and
the parties shall proceed in a good faith effort to try to resolve this case.
Following the mediation, the court will be advised only that the case did
or did not settle. Referral to alternative dispute resolution is not a
substitute for trial, however, and the case will be tried if not settled.
Dkt. No. 20 at 1-2. The Mediation Order further advised that “[f]ailure to comply in
good faith with the requirements of this order may result in the imposition of
-2-

sanctions. See Fed. R. Civ. P. 16(f).” Id. at 2.
The deadline to complete mediation was April 14, 2017. See Dkt. Nos. 16, 20.
The parties agreed to mediate the case on February 15, 2017. See Dkt. No. 40-1
at 4. Burdin Mediations sent a Notice of Scheduled Mediation Conference to Plaintiff’s
counsel on October 6, 2016. See Dkt. No. 40-2. Defendants’ counsel was copied on the
letter. See id.
Ms. Fragnoli sent a letter to counsel for both parties on January 24, 2017
“asking each of you to evaluate the case at this time and let me know if there is any
reason why we might not be able to proceed with the mediation as scheduled on
02/15/17.” “For example: ... [h]as your client/representative confirmed their availability
for the mediation?” ...[h]ave all necessary participants been notified of the mediation?
... [and] [h]as the mediation been entered on your calendar?” Dkt. No. 40-3 at 3-4.
On February 15, 2017, Plaintiff, Plaintiff’s counsel, and the mediator appeared
for mediation, but Defendants and their counsel did not. The mediator eventually
reached Defendants’ counsel, who admitted that she was unaware of the mediation and
did not have the mediation on her calendar. The mediator and the parties agreed to
reschedule the mediation for February 17, 2017.
On returning to her office on February 15, 2017, Plaintiff’s counsel sent
Defendants’ counsel a letter in which she threatened to file a motion for contempt
unless Defendant Dallas County paid Plaintiff $1,235.00 for expenses incurred as a
result of Defendants’ failure to attend the mediation. Specifically, Plaintiff demanded
that Defendant Dallas County pay Plaintiff’s portion of the mediation fee ($750.00),
-3-

Plaintiff’s lost wages ($110), and attorney’s fees ($375.00 for 2.5 hours at the hourly
billing rate of $150.00). Plaintiff’s counsel also asked whether Defendants would have
a representative with settlement authority at the February 17 mediation “so that we
can mediate in good faith.” And Plaintiff’s counsel presented a settlement demand. See
Dkt. No. 40-4 at 2. Defendants’ counsel responded “file your motion for contempt,”
which Defendants opposed. See Dkt. No. 40-5.
Plaintiff filed his Sanctions Motion on February 16, 2017. See Dkt. No. 40.
Plaintiff argues that “Defendants failed to attend a scheduled mediation with no
justification other than their counsel claimed to be unaware of the mediation date.” Id.
at 4. Plaintiff also argues that Defendants’ objections to the Sanctions Motion should
be waived because Defendants’ counsel was informed of the date of the mediation. See
id. Plaintiff seeks sanctions under Federal Rule of Civil Procedure 16(f)(1)(C) for
Defendants’ failure to obey a scheduling order. Plaintiff requests an order requiring
Defendants to pay Plaintiff’s reasonable expenses for preparing the Sanctions Motion,
including attorney fees, in the amount of $300; requiring Defendants to pay the
mediation fee, attorneys’ fees, and lost wages incurred as a result of Defendants’ failure
to attend the February 15, 2017 mediation in the amount of $1,235.00; prohibiting
Defendants from seeking to delay mediation in an attempt to allow more time to
prepare dispositive motions; prohibiting Defendants from submitting any dispositive
motions that were not on file at the time the Sanctions Motion was filed; rendering of
a default judgment against Defendants; and holding Defendants in contempt of court.

-4-

See id. at 3-4.
Defendants’ counsel sent Ms. Fragnoli a letter on February 16, 2017, explaining
that Dallas County would not have “an executive officer ... with ‘active’ authority to
negotiate a settlement” at the February 17 mediation:
The County can act only through the Commissioner’s Court and
settlement actions by that Court require formal briefing and approval in
executive session.
No one individual can “negotiate” a settlement for the County, unless the
Commissioner’s Court has given prior approval of a specific settlement
offer.
Given that I was just reminded of the mediation yesterday afternoon,
there will [be] no one at the mediation who will come with a specific
settlement offer from the County. I have received Plaintiff’s settlement
demand and I will take that to the Commissioners Court at the next
available meeting or if Plaintiff has a different offer following mediation
tomorrow I will take that to the Commissioners instead.
...
I just do not know any other way to handle this situation unless
it is to ask the Court to allow the parties to reschedule the
mediation next time you are in town, with me filing the motion
and accepting all responsibility.
Dkt. No. 40-7 (emphasis in original).
According to Defendants’ counsel, a draft motion for extension of time was
circulated to Plaintiff’s counsel, who opposed the motion, and to the mediator, who
urged the parties to appear at mediation on February 17 rather than postponing the
mediation. See Dkt. No. 47 at 3. The mediator understood that governmental entities
such as the County could not appear at mediation with a representative with full and
active authority to settle the litigation and bind the County and that the County may
only approve a settlement by consideration of the matter by placement on its bi-weekly
-5-

agenda for review by the members of the Commissioners Court in Executive Session.
See id. Accordingly, the motion for extension of time was not filed. See id. at 3-4.
The mediation was conducted on February 17, 2017. Chief Flores appeared in
person in his individual capacity and as a representative of the County. Defendants
received Plaintiff’s settlement offer and represented that the offer would be presented
to the Commissioner’s Court on March 7. See id. at 4.
Plaintiff filed a supplement to the Sanctions Motion on February 20, 2017. See
Dkt. No. 43. Plaintiff asserted additional arguments to support the claim for sanctions
based on Defendants’ failure to have a representative with settlement authority
present at the mediation, despite Defendants’ counsel’s letter to the mediator
explaining why Defendants’ could not comply with this requirement. See id.
Defendants presented Plaintiff’s settlement offer to the Commissioner’s Court
on March 7, 2017, and it was rejected in its entirety. See Dkt. No. 47 at 4.
The mediator submitted an Alternative Dispute Resolution Summary on March
8, 2017, stating that the parties were unable to reach a settlement and that her total
fee was $1,500.00. See Dkt. No. 46.
Defendants filed a response to the Sanctions Motion on March 9, 2017. See Dkt.
No. 47. Defendants’ counsel acknowledges receiving an email notification from Burdin
Mediation confirming that the parties had agreed to February 15, 2017 as the
mediation date, which indicated that a notice scheduling the mediation and an invoice
would be forthcoming, but Defendants’ counsel did not receive a written notice or

-6-

invoice. Defendants’ counsel also acknowledges receiving the mediator’s January 24,
2017 letter to confirm if the February 15, 2017 date was still workable. And
Defendants’ counsel admits that she made a mistake by failing to calendar the
February 15, 2017 mediation date. When the mediator contacted her on February 15,
2017, Defendants’ counsel “admitted that she had made a serious mistake and did not
have the mediation on her calendar.” Id. at 2.
According to Defendants’ counsel, she also tried to rectify her mistakes by
preparing a motion to extend time for mediation until May 2017 when the mediator
would next be in Dallas and available for mediation. The purpose of the motion to was
allow time for Defendants to arrange for a County representative to attend mediation,
for Chief Flores to arrange his schedule to personally attend mediation, and to
approach the County Commissioner’s Court about what settlement offer, if any, it
might want to make. “The intent was to make sure the Defendants would be in literal
and full compliance with the Court’s mediation order.” Id. at 3 (emphasis omitted).
Plaintiff’s counsel opposed the motion to extend, and the mediator urged the
parties to appear at mediation on February 17 instead of postponing the mediation.
The mediator agreed that Chief Flores could appear by telephone, and she understood
that governmental entities such as the County could not appear at mediation with a
representative with full and active authority to settle the litigation and bind the
County. Accordingly, Defendants’ counsel did not file the motion for extension and
proceeded to mediation on February 17, 2017. Chief Flores also changed his schedule
on short notice and attended the mediation in his individual capacity and as a County
-7-

representative.
Defendants argue that sanctions are not warranted because Defendants did not
blatantly or intentionally ignore the Court’s orders. The failure to attend the February
15, 2017 mediation was the result of their counsel’s mistake, and the mediation was
conducted two days later. Defendants further argue that the final outcome of the
attempt to settle the case was not changed by the lack of full compliance with the
Court’s orders because the Commissioner’s Court rejected Plaintiff’s settlement
demand. “The aims of the Court’s mediation order were met, even if there was
technically non-compliance.” Id. at 7.
Plaintiff filed a reply on March 21, 2017. See Dkt. No. 48. Plaintiff’s counsel
attaches a pre-litigation demand letter. See Dkt. No. 48-1. Plaintiff also claims that the
offer of settlement that Defendant presented to the Commissioner’s Court on March 7,
2017 was not Plaintiff’s offer but instead was the mediator’s proposal for settlement.
And Plaintiff argues that “Chief Flores and his counsel were very clear at the
mediation that they had shown up but were not there to mediate.” According to
Plaintiff’s counsel, the parties did not participate in “true settlement discussions” and
“Defendants wasted Plaintiff’s time and money for the second time in a week.” Id. at
2.
Legal Standards
Federal Rule of Civil Procedure 16(f)(1)(C) provides that, “[o]n motion or on its
own, the court may issue any just orders ... if a party or its attorney ... fails to obey a
scheduling or other pretrial order.” FED. R. CIV. P. 16(f)(1)(C). Under Federal Rule of
-8-

Civil Procedure 16(f), the Court may issue sanctions, including those authorized under
Federal Rule of Civil Procedure 37(b)(2)(A)(ii)-(vii), if a party fails to comply with a
scheduling or other pretrial order. See FED. R. CIV. P. 16(f)(1) (“On motion or on its
own, the court may issue any just orders, including those authorized by Rule 37(b)(2)
(A)(ii)-(vii), if a party or its attorney: ... (C) fails to obey a scheduling or other pretrial
order.”). Rule 37(b)(2)(A) provides, in pertinent part, the Court may enter as sanctions
“just orders ... (ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence; (iii)
striking pleadings in whole or in part; (iv) staying further proceedings until the order
is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a
default judgment against the disobedient party; or (vii) treating as contempt of court
the failure to obey any order except an order to submit to a physical or mental
examination.” FED. R. CIV. P. 37(b)(2).
The Court has broad discretion in formulating sanctions for a violation of its
scheduling or pretrial orders. See Barrett v. Atl. Richfield Co., 95 F.3d 375, 380 (5th
Cir. 1996). When considering sanctions under Rule 16(f), the Court should fashion
remedies suited to the misconduct and should consider whether lesser sanctions, short
of contempt, dismissal, or a default judgment, may prove effective. See, e.g., Smith &
Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488 (5th Cir.2012). Rule 16(f)(2)
further provides that, “[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.” FED. R. CIV.
-9-

P. 16(f). But the Court will not award fees and expenses under Rule 16(f) if the failure
or noncompliance “was substantially justified or other circumstances make an award
of expenses unjust.” Id.
In deciding whether a sanction is merited, the Court need not find that the party
acted willfully, intentionally, or in bad faith. See Lucas Automotive Eng’g, Inc. v.
Bridgestone/Firestone, Inc., 275 F.3d 762, 769 (9th Cir. 2001); Martin Fam. Trust v.
Heco/Nostalgia Enters. Co., 186 F.R.D. 601, 604 (E.D. Cal. 1999) (collecting cases); 6A
Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 1531 (3d
ed. 2012). The fact that a pretrial order was violated is sufficient to allow some
sanction, as Rule 16(f)’s text itself makes this clear. Rule 16(f) also does not require a
showing of prejudice to justify sanctions. See John v. Louisiana, 899 F.2d 1441, 1448
(5th Cir. 1990). But, under Rule 16(f), the extreme sanction of a default judgment
requires “a clear record of delay or contumacious conduct by the” party to be
sanctioned. Bann v. Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir.1997).
Analysis
It is undisputed that Defendants failed to obey the Mediation Order [Dkt. No.
20] by failing to appear for mediation on February 15, 2017. And Defendants’ counsel
admits that Defendants failed to attend mediation on February 15, 2017 because she
mistakenly failed to record the mediation date on her calendar. Defendants’ counsel
appears to have acted in good faith and appropriately when working to remedy or
mitigate the situation as best she could.

-10-

But the Court cannot find that the cost of Defendants’ counsel’s failure to
calendar the mediation date should be borne by Plaintiff. Even accepting Defendants’
contention that this was an innocent mistake, Defendants’ failure to appear for a
scheduled mediation on February 15, 2017, had real economic consequences for
Plaintiff, and the Court finds that, as between Plaintiff and Defendants, it would be
unjust for Plaintiff or his counsel to bear the expenses cause by Defendants’ failure to
appear on February 15, 2017.
Under all the circumstances, the Court finds that, under Rule 16(f)(2),
Defendants’ counsel should be required to pay Plaintiff the reasonable expenses,
including attorney’s fees, caused by Defendants’ failure to appear for mediation on
February 15, 2017. Those expenses are limited to Plaintiff’s lost wages for missing
work to attend the mediation on February 15, 2017; attorneys’ fees incurred to attend
the mediation on February 15, 2017; and expenses, including attorney’s fees, to prepare
the Motion for Sanctions for Violation of Mediation Order [Dkt. No. 40]. Plaintiff’s
portion of the mediator’s fee is not included in the sanctions award because the
mediation was conducted on February 17, 2017, and the mediator’s Alternative Dispute
Resolution Summary does not include any extra costs as a result of Defendants’ failure
to appear on February 15, 2017.
The mediation went forward on February 17, 2017, Chief Flores attended, and
the record does not support a finding that Defendants otherwise failed to have an
officer with authority to negotiate a settlement present. Plaintiff’s dissatisfaction with
the results of that mediation and of the Commissioner’s Court’s decision on a
-11-

settlement proposal do not, under all the circumstances presented and on the factual
record here, support a finding that Defendants further violated the Court’s Mediation
Order [Dkt. No. 20] or warrant any further sanctions or findings of contempt under
Rule 16(f) or 28 U.S.C. § 636(e).
Plaintiff may file an application for his reasonable expenses as described above.
But Northern District of Texas Local Civil Rule 7.1 requires that parties confer before
filing an application for attorneys’ fees. Plaintiff’s counsel and Defendants’ counsel are
therefore directed to meet face-to-face and confer about the reasonable amount of these
attorneys’ fees and costs to be awarded under Federal Rule of Civil Procedure 16(d)(2).
This face-to-face requirement is not satisfied by a telephonic conference. Any attorney
refusing to appear for this meeting or to confer as directed will be subject to sanctions.
By no later than June 30, 2017, the parties must file a joint status report notifying the
Court of the results of the conference. If all disputed issues as to the amount of
reasonable expenses to be awarded to Plaintiff have been resolved, Plaintiff must also,
by

June

30,

2017,

send

an

agreed

proposed

order

to

the

Court

at

[e-mail].
If the parties do not reach an agreement as to the amount of attorneys’ fees and
costs to be awarded to Plaintiff, Plaintiff may, by no later than July 7, 2017, file an
application for attorneys’ fees and costs that is accompanied by supporting evidence
establishing the amount of the attorneys’ fees and costs (as described above) to be
awarded under Rule 37(d). The fee application must be supported by documentation
evidencing the “lodestar” calculation, including affidavits and billing records, and
-12-

citations to relevant authorities and shall set forth the number of hours expended in
connection with the recoverable attorneys’ fees described above as well as the
reasonable rate(s) requested. See Tollett v. City of Kemah, 285 F.3d 357, 367 (5th Cir.
2002) (using the “lodestar” method to award attorney’s fees under Rule 37).
If an application is filed, Defendants may file a response by July 28, 2017, and
Plaintiff may file a reply by August 11, 2017.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part Plaintiff’s Motion for Sanctions for Violation of Mediation Order
[Dkt. No. 40].
SO ORDERED.
DATED: June 9, 2017

_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE

-13-