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Dorothy Barney v. Consolidated Edison

March 16, 2012


The opinion of the court was delivered by: Matsumoto, United States District Judge:


On February 10, 1999, plaintiff Dorothy Barney ("plaintiff") brought the instant employment discrimination action against her former employer, Consolidated Edison Company of New York, Inc. ("defendant" or "Con Edison"), alleging, inter alia, that certain employees at Con Edison retaliated against her for complaining about sex and race discrimination, in violation of federal, state and city law. On March 28, 2007, then-presiding Judge David G. Trager*fn1 denied defendant's motion to dismiss for failure to prosecute and comply with court orders, but imposed, inter alia, certain sanctions chargeable to plaintiff's counsel, Stephen Mitchell, including a monetary sanction and attorneys' fees based on the court's determination that plaintiff's counsel was responsible for repeated failures to comply with discovery orders and deadlines.

On October 1, 2009, Judge Trager granted summary judgment in favor of defendants with respect to certain of plaintiff's federal and state law claims, and dismissed the remaining claims without prejudice, and the Second Circuit affirmed. (See ECF No. 205.) The Clerk of Court entered judgment in favor of defendants on November 12, 2009. (See ECF No. 177, Clerk's Judgment.) By Order dated November 13, 2009, Judge Trager clarified that the November 12, 2009 judgment "cover[ed] only the issues decided in the October 2009 order and that the November 12, 2009 judgment [did] not cover the outstanding sanctions award and outstanding award of attorney's fees," over which the court retained jurisdiction and which the court referred to Magistrate Judge Gold for a Report and Recommendation, which Judge Trager would address in a post-judgment order. (ECF No. 178, Order dated 11/13/2009.)

Pending before the court is (1) defendant's motion to hold plaintiff's counsel in civil contempt for failure to pay the court-ordered monetary sanction imposed on March 28, 2007; and (2) a Report and Recommendation dated January 29, 2010, regarding the amount of attorneys' fees to which defendant is entitled pursuant to Judge Trager's March 28, 2007 and November 13, 2009 award of attorneys' fees incurred by defendant in preparing its motion to dismiss plaintiff's complaint for failure to prosecute or, in the alternative, to close plaintiff's discovery rights and preclude plaintiff's economic expert.

For the reasons set forth below, the court (1) grants defendant's motion to hold plaintiff's counsel, Mr. Mitchell, in civil contempt for failure to obey Judge Trager's orders dated March 28, 2007, and November 13, 2009; and (2) affirms and adopts the January 29, 2010 Report and Recommendation of Magistrate Judge Gold in its entirety as the opinion of the court.

I.Motion to Hold Plaintiff's Counsel in Civil Contempt


The instant motion to hold plaintiff's counsel in civil contempt arises from Mr. Mitchell's lengthy history of disregarding court orders in this action.

On April 10, 2002, Mr. Mitchell failed to appear at a deposition for which the deponent, a Con Edison witness, had traveled from Arizona to New York. (ECF No. 180, Affirmation of Barbara Carey in Support of Defendant's Motion That Plaintiff's Counsel Be Held In Contempt ("Carey Decl."), at ¶ 4 & Ex. A.) That day, defendant's counsel attempted to reach Mr. Mitchell by telephone without success, and his answering machine indicated that his office would be closed on April 10 and 11, 2002. (Id. ¶ 4.) By letter dated April 22, 2002, Mr. Mitchell explained to plaintiff and the court that he had closed his office on April 10 and 11 because a relative had passed away, and "[t]he deposition did not take place because I was not available." (Id., Ex. A.) Mr. Mitchell agreed to reimburse any reasonable expenses the deponent incurred in traveling to New York for the cancelled deposition. (Id.) Mr. Mitchell further represented that he would make the reimbursement within one month after defendant identified such reasonable expenses. (Id.)

On October 7, 2002, defendant notified Mr. Mitchell that the total amount to be reimbursed, including airfare and hotel, was $1,003.46. (Id. ¶ 6 & Ex. B.) Defendant explains that because "the total was slightly mis-identified in Court as $963" at some point, the amount of reimbursable expenses was set at $963. (Id. ¶ 6.)

Mr. Mitchell did not pay the $963 in expenses within thirty days as he had pledged in his April 22, 2002 letter to the court, and defendant advised the court during a December 20, 2002 telephone conference before Magistrate Judge Gold that Mr. Mitchell's payment was still outstanding. (Id. ¶¶ 7-8 & Exs. A, C.) During the telephone conference, Mr. Mitchell promised to pay the expenses by the end of December 2002, and Magistrate Judge Gold warned that "the amount due defendant for failure to attend [the] deposition doubles on January 1st[, 2003] if not paid by then" because the deponent should not "have to wait for money that [deponent was] out of pocket because of [Mr. Mitchell's] dereliction." (Id. ¶ 8 & Ex. C.)

Mr. Mitchell eventually paid the $963 in reimbursable expenses, but the parties dispute whether he did so by December 31, 2002. Defendant contends that Mr. Mitchell's payment was not timely because the envelope in which Mr. Mitchell enclosed a $963 check was post-marked January 2, 2003. (Id. ¶ 9; ECF No. 185, Plaintiff's Counsel's Opposition to Defendant's Motion for Contempt ("Mitchell Contempt Mem.") at 1.) Mr. Mitchell, on the other hand, claims that he in fact "tendered a check in the United States mail before the January 1, 2003 deadline" and that the envelope bore a January 2, 2003 post-mark only because January 1, 2003, was a legal holiday. (Mitchell Contempt Mem. at 2.)

By letter dated February 24, 2003, defendant cited numerous examples in which plaintiff or plaintiff's counsel disregarded Magistrate Judge Gold's orders, including the fact that Mr. Mitchell had missed the December 31, 2002 deadline for payment of the $963 in reimbursable expenses. (Carey Decl. ¶ 10 & Ex. D.) Mr. Mitchell did not respond to the allegations in defendant's February 24, 2003 letter until defendant again raised the issue of Mr. Mitchell's allegedly overdue payment during a settlement conference before Magistrate Judge Gold on March 14, 2003. (Id. ¶ 10 & Ex. E.) At that time, Mr. Mitchell argued for the first time that he in fact sent the check before December 31, 2002. (Id.) Upon rejecting Mr. Mitchell's belated response as untimely, Magistrate Judge Gold accepted as true defendant's allegations that Mr. Mitchell failed to reimburse defendant by December 31, 2002, and entered judgment against Mr. Mitchell for an additional $963 (the "Sanction") pursuant to his December 20, 2002 order. (Id. ¶¶ 10-11 & Ex. E.) Payment of the Sanction was due two days after Judge Trager decided any objections to Magistrate Judge Gold's March 14, 2003 ruling. (Id. ¶ 11 & Ex. E.) The docket indicates that Mr. Mitchell did not object to or otherwise seek review of Judge Gold's March 14, 2003 ruling.

At an April 11, 2003 oral argument, Judge Trager warned that if plaintiff failed to produce certain discovery by June 17, 2003, he would adhere to Magistrate Judge Gold's March 14, 2003 ruling and order Mr. Mitchell to pay the Sanction. (Id. ΒΆ 12 & Ex. F.) Plaintiff ...

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