Tuesday, December 5, 2017

Every lawyer's nightmare

In this case, the plaintiff's lawyer had three court conferences at the same in three different counties. He tried to attend all the conferences but, of course, that plan failed and he did not make it in time for his federal court appearance in Brooklyn. So the judge dismissed the case after waiting 29 minutes for counsel to appear.

The case is Smalls v. County of Suffolk, a summary order decided on December 4. We all remember how judges react to lawyers who show up late, if at all. We had a judge in White Plains (since retired) who would simply have the court conference without the other lawyer present. Another judge in White Plains will have the conference by calling the offending lawyer and having him participate by phone. A judge at Foley Square would sit on the bench and look at the clock every few minutes before announcing how much time had elapsed since counsel was supposed to be in court. Things are different in state court; the judges put the case at the end of the calendar in assuming the late lawyer is somewhere else in the courthouse before a different judge.

In this case, it was the second time counsel failed to appear for a conference. The case was dismissed sua sponte with prejudice. The Court of Appeals (Leval, Hall and McMahon [D.J.]) reinstates the case, holding that dismissal was too harsh a remedy "because the dereliction of Plaintiffs' attorney could be appropriately dealt with by a monetary sanction on the attorney, instead of so harshly sanctioning the Plaintiffs who were innocent of the dereliction."

While it is true the court can dismiss a case for failure to prosecute under Rule 41(b), that dismissal must "be proceeded by particular procedural prerequisites, including notice of the sanctionable conduct, the standard by which it will be assessed, and an opportunity to be heard." That test draws from Baptist v. Sommers, 768 F.3d 212 (2d Cir. 2014). That procedure was not followed here. While "there was no excuse for counsel's failure to notify a busy district court judge that his obligations to appear on the same morning in three separate courtrooms in three counties made it likely that he would be late for the conference, . . . the sanction imposed was needlessly severe and punished the wrong person." The Second Circuit suggests a monetary sanction on remand might work.

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