Instagram And Suspicious Plane Itinerary, Along With Attorney Admission, Led To Imposition Of Sanctions.
When it comes to blowing deadlines which can be cured, counsel should be candid with courts in requesting relief, which can be granted if the circumstances are right. The next situation, which has drawn quite a bit of publicity, illustrates the necessity for honesty in requesting such relief.
What happened in Ha v. Baumgart Café of Livingston, Civil Action No. 2:15-cv-5530-ES-MAH (D.N.J. Apr. 26, 2018 (PACER Document No. 123) is that a class conditional certification motion deadline in a wage/hour case was blown by co-counsel who then filed a request for extension of time to file the motion. Co-counsel said that she had to attend to a family emergency in Mexico City, and attached a copy of her plane itinerary as corroborating proof. Her other co-counsel was unaware that the deadline had been blown or that she had a family emergency. In opposition, defense counsel presented an Instagram account showing that plaintiffs’ attorney was not in Mexico City when the motion was due but was instead in New York City. Also, the date on the flight itinerary supplied as corroboration listed a date which did correspond to the actual date of the week for that designated date. The attorney first withdrew the class certification motion with prejudice, and then reversed course asking to change the withdrawal to be without prejudice. This resulted in a rift between plaintiffs’ two attorneys, with the one attorney moving to withdraw as plaintiffs’ counsel. U.S. Magistrate Judge Michael A. Hammer eventually found no prejudice from the delay in filing the motion, allowed the one attorney to withdraw, and ordered the remaining attorney to obtain new local counsel. During the various hearings, the withdrawing attorney admitted she was not in Mexico City during the pertinent dates and the remaining counsel indicated he was unaware of the blown deadline until later.
The defense requested leave to apply for sanctions, which the magistrate judge granted. He found that sanctions were justified under 28 U.S.C. § 1927 because the offending attorney misled the court and other attorneys in the case as shown by the Instagram account, flight itinerary, and her own admissions in open court. However, remaining counsel was not sanctioned. With respect to the amount of sanctions, the magistrate judge awarded $10,000 in favor of defense attorneys on a pro rata basis, but found that the $44,283 request was “unreasonably high.”