United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE
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.
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 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,
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.
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.
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
sanctions. See Fed. R. Civ. P. 16(f).”
Id. at 2.
deadline to complete mediation was April 14, 2017.
See Dkt. Nos. 16, 20.
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
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.
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.
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), 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.
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