United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. MANN CHIEF UNITED STATES MAGISTRATE JUDGE
plaintiffs' counsel in the two above-captioned cases
failed to appear as directed for the court-ordered settlement
conference scheduled for May 22, 2017 at 1:15 p.m., this
Court waited fifty minutes before commencing the proceeding
without her; at that time, defense counsel advised that no
further discovery had occurred since the thwarted settlement
conference held on March 3, 2017, and that plaintiffs'
counsel had ignored repeated emails from defense counsel,
since early April, seeking to obtain discovery from
plaintiffs. The Court therefore directed plaintiffs and their
counsel to show cause, via ECF, by May 25, 2017, why the
cases should not be dismissed for lack of prosecution and/or
sanctions imposed on plaintiffs' counsel, Hattie Ragone.
See Minute Entry (May 22, 2017), Electronic Case
Filing Docket Entry (“DE”) #20.
timely responded to that Order on May 25, 2017. The response does
not provide good cause for plaintiffs' counsel's
of all, Ms. Ragone's assertion that the aborted March 3rd
settlement conference was her “first appearance”
as counsel for plaintiffs,  see Pl. Response ¶
6, is, to put it charitably, simply inaccurate. In fact, Ms.
Ragone appeared at the initial conference in Phipps,
on September 8, 2016, and advised that she would be replacing
plaintiffs' initial attorney, Chevone Toscano.
See Minute Entry (Sept. 8, 2017), DE #12. That same
day, she filed a Notice of Appearance in Phipps, DE
#13 (inaccurately docketed as “Notice of Appearance by
Chevone T. Toscano”), and, the following month, filed
an Amended Complaint in Phipps, DE #14. Meanwhile,
by Electronic Order docketed in Doherty on October
5, 2016, Doherty was deemed related to
Phipps and reassigned to Judge Johnson and the
undersigned magistrate judge, and this Court consolidated
discovery in the two cases and ruled that the schedule set in
Phipps would apply in Doherty. See
Electronic Order (Oct. 5, 2016) in 16-cv-2594. Therefore,
contrary to Ms. Ragone's assertion that her first
appearance in this combined litigation was on March 3, 2017,
she began her involvement six months earlier, in September
as justification for her nonappearance at last week's
settlement conference, Ms. Ragone states that she
“became incapacitated with an eye infection . . . that
morning[, ] . . . attempted to self-medicate[, ] [and ended
up seeking] treatment at an urgent care center local to my
office.” Pl. Response ¶¶ 8-10. While those
circumstances may explain her nonappearance, they do not
address -- let alone justify-- her failure to notify the
Court and counsel (at least by phone) that she would be
unable to appear as directed. As noted above, unaware of Ms.
Ragone's situation, the Court and defense counsel waited
a significant amount of time for her to appear.
Ms. Ragone concedes that she has “no excuse” for
failing to respond to defense counsel's three emails,
though she does fault her adversary for failing to be more
specific in identifying the need for additional HIPAA
authorizations, and for failing to move to compel. See
id. ¶¶ 13-15. However, had Ms. Ragone promptly
responded to the emails, her questions presumably would have
been answered and the issue resolved.
discovery closed on May 17, 2017, and plaintiffs apparently
have taken no discovery. Because these cases involve infant
plaintiffs, the Court will not at this time recommend
dismissal for lack of prosecution. However, less severe
sanctions are in order, specifically, monetary sanctions
imposed on plaintiffs' counsel, in the form of
fee-shifting for the aborted May 22nd settlement
conference that defense counsel was constrained to attend. If
defendants wish to recover from plaintiffs' counsel the
fees incurred by them in connection with that proceeding,
they shall file a fee request by June 2, 2017, specifying the
amount of time expended and Mr. Lima's hourly rate.
the Court will tolerate no further delays in these cases or
violations of court orders. The parties are directed to
confer and, by June 2, 2017, to file a joint proposed
schedule for expert discovery and requests for a pre-motion
 Docket Entry numbers refer to those in
the Phipps court file.
 Inexplicably, plaintiffs' response
(“Pl. Response”) was docketed as a “First
Motion to Dismiss for Lack of Prosecution” (DE #21) in
the Phipps case (albeit bearing the Doherty
docket number), and was not filed in
 Ms. Ragone's response incorrectly
states that she appeared for a conference on March 2, 2017.
See Pl. ...