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April 11, 2003


The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge

This matter has been referred to me for all purposes pursuant to 28 U.S.C. § 636(c). Pursuant to the order of reference, on September 13, 2002, my staff sent a letter to counsel for both parties scheduling a status conference for October 4, 2002 at 10:00 a.m. Neither copy of this Order was returned as undeliverable, and neither side denies receiving the letter. At approximately 9:15 a.m. on the morning of October 4, 2002, I received a fax from defendant's counsel advising me that he was on trial that morning and would not be appearing for the conference scheduled for October 4, 2002. Defendant's counsel's fax also stated that counsel "did not realize this matter was on until October 3, 2002 and thereafter attempted to notify the Plaintiff's Attorney and the Court Clerk."

Although plaintiff's counsel appeared for the conference, it was impossible to proceed due to the absence of defendant' s counsel.

After the aborted October 4, 2002 conference, plaintiff's counsel submitted an affidavit requesting reimbursement of $607.50 for his attendance on October 4, 2002. Plaintiff's counsel maintains his office in Nassau County, and the sum sought represents approximately 3-1/2 hours of time at $173.57 per hour.

After receiving plaintiff's counsel's affidavit, I issued an Order to Show Cause directing defendant's counsel to show cause why he should not be directed to reimburse plaintiff's counsel for his wasted time. In response, defendant's counsel has submitted an Affirmation dated October 25, 2002, in which he states in substance that he did not appear for the conference on October 4, 2002 because he was actually engaged in another court and that he attempted to contact counsel and the Court the day before to advise them. He further states that he was unable to contact plaintiff's counsel because plaintiff's phone was inoperative that day and that he did not even realize the conference was scheduled for October 4, 2002 until he spoke with his secretary on October 3, 2002 to "review the next day's calendar."

Defendant's counsel's explanation is unconvincing. As an initial matter, I note that the letter scheduling the October 4th conference advised counsel "any request f or an adjournment must be made in writing at least 48 hours prior to the conference. . . ." (emphasis added). Thus, defendant's counsel was notified approximately three weeks before the conference that adjournments would not be granted on less than 48 hours notice. Accordingly, counsel's claim that he did not know about the conference until October 3, 2002 is either inaccurate or indicates that counsel fails to read correspondence from the Court.*fn1

Defendant's counsel also claims that his failure to timely request an adjournment and failure to appear are somehow excused by the fact that plaintiff's counsel has allegedly failed to appear for conferences in other matters. Whether or not this contention is true, it is simply immaterial. The scheduling of judicial proceedings would quickly be thrown into chaos if an attorney's failure to appear in a timely manner in one proceeding somehow gave his adversary a free pass to reciprocate in a subsequent proceeding.

Finally, the chronology of events here strongly suggests that defendant's counsel failed to appear at the conference before me because he chose to appear in a proceeding that was scheduled after the conference in this matter. As mentioned above, the conference in this matter was scheduled by letter dated September 13, 2002. At the time the letter was sent to counsel, neither side raised any scheduling conflict and neither side suggested that the scheduled date and time were in any way inconvenient. The fact that defendant's counsel failed to appear before me on October 4th, in conjunction with his failure to object to my scheduling a conference on that date, suggests that his other court appearance was scheduled after I had scheduled the conference in this matter. Since it appears that the conference before me was the first scheduled conference, it was incumbent upon defendant's counsel to advise the judge in the subsequently scheduled proceeding that counsel had a conflict.

Defendant's counsel's behavior here caused plaintiff's counsel to spend time and money needlessly to travel to the Court for a conference that could not take place. Since defendant's counsel is responsible for this waste of time, it is fair that he bear the financial burden of it. As the late Judge MacMahon noted many years ago, "A lawsuit is not a game but a search for the truth. The ends of justice are served, not by giving one side a vested right to exhaust the other, but by affording both an equal opportunity to a full and fair adjudication on the merits." Polaroid Corp. v. Casselman, 213 F. Supp. 379, 381 (S.D.N.Y. 1962).

Based on my knowledge of geography in the Southern and Eastern Districts of New York and my knowledge of the prevailing rates for legal services in the New York metropolitan area, I find that both the rate sought by plaintiff's counsel and the amount of time for which compensation is sought are reasonable. See Kim v. Dial Service International, Inc., 96 Civ. 327 (DLC), 1997 WL458783 at *17 (S.D.N.Y. Aug. 11, 1997); Bonner v. Guccione, 94 Civ. 7735 (DLC), 1997 WL441910 at *7-*8 (S.D.N.Y. Aug. 6, 1997). Finally, I note that since the sanction here is based on the Court's inherent power "to manage its own affairs so as to achieve the orderly and expeditious disposition of cases," no finding of bad faith is necessary. United States v. Seltzer, 227 F.3d 36, 41 (2d Cir. 2000) (inner quotation marks and citations omitted).

Accordingly, no later than ten (10) days from the date of this Order, defendant's counsel is directed to reimburse plaintiff's counsel the sum of $607.50. Since this sanction is the sole result of counsel's conduct, it is not to be charged to defendant personally as a disbursement, cost or other item of expense.

SO ...

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