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Westbrook v. Dallas County

United States District Court, N.D. Texas, Dallas Division

June 9, 2017

DALLAS COUNTY, TEXAS; JESSE FLORES, Dallas County Sheriff's Executive Chief, in His Individual and Official Capacity; and DALLAS COUNTY SHERIFF DEPARTMENT'S SERVICE COMMISSION, Defendants.



         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 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)).


         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 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), 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 ...

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