     10-5100-cv
     Mitchell v. Lyons Prof’l Servs., Inc.


 1                        UNITED STATES COURT OF APPEALS

 2                             FOR THE SECOND CIRCUIT

 3                               August Term, 2012

 4

 5   (Submitted:    February 1, 2012             Decided: February 28, 2013)

 6                             Docket No. 10-5100-cv

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 8   KEESHA MITCHELL, THERESA CAMPBELL, SEANNETTE CAMPBELL, and
 9   TANISHA SELBY,
10
11               Plaintiffs-Appellants,
12                 v.

13   LYONS PROFESSIONAL SERVICES, INC.,
14
15               Defendant-Appellee,
16
17   RICHARD TRIM and TERRY TATUM,
18
19               Defendants,
20
21   CHRISTOPHER M. LYONS and GARRISON PROFESSIONAL SERVICES, INC.,
22
23               Interested Parties-Appellees.*

24   - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
25   B e f o r e:       WINTER, RAGGI, and CHIN, Circuit Judges.
26         Appeal from the denial of plaintiffs-appellants’ motion to

27   execute a monetary judgment entered as a sanction for attorney

28   misconduct in the United States District Court for the Eastern

29   District of New York (Brian Cogan, Judge).          We vacate and remand.


           *
             The Clerk of the Court is instructed to conform the caption in
     accordance herewith.

                                             1
 1                                 Mitchell L. Perry, Rawlins Law Firm, New
 2                                 York, New York, for Appellants.
 3
 4                                 Brooke L. Anthony, Law Offices of
 5                                 Raymond A. Giusto, P.C., West Bay Shore,
 6                                 New York, for Appellees.
 7

 8   WINTER, Circuit Judge:

 9         Keesha Mitchell, Theresa Campbell, Seannette Campbell, and

10   Tanisha Selby appeal the denial of their motion for a writ of

11   execution against Christopher M. Lyons and Garrison Professional

12   Services, Inc. ("Garrison Services").         See Fed. R. Civ. P. 69(a)

13   and N.Y. C.P.L.R. § 5225(b).        The motion was based on default

14   judgments appellants had earlier obtained against defendant Lyons
15   Professional Services, Inc. ("Lyons").1         The district court

16   denied this motion as a sanction for appellants’ counsel's

17   repeated failures to comply with the court’s orders.            We hold

18   that although the district court had more than an adequate basis

19   to sanction counsel and accorded the required procedural

20   safeguards, further findings are needed to support a sanction

21   that falls entirely on the clients rather than principally on the

22   lawyer.
23                                    BACKGROUND

24         The underlying action is against appellants’ former employer

25   Lyons and two supervisory personnel, Trim and Tatum, for

26   employment discrimination under federal, state, and local law.


           1
             The district court permitted appellants to proceed against Lyons and
     Garrison Services by motion rather than by filing a separate proceeding. We
     express no view regarding the propriety of that decision.


                                           2
 1   The complaint alleged incidents of sexual harassment and sexual

 2   assault by Trim and Tatum, with vicarious liability attributable

 3   to Lyons.     Appellants obtained default judgments          against Lyons

 4   and Trim, who both failed to appear, and dismissed the case

 5   against Tatum.      At a damages inquest, the district court awarded

 6   $266,590, consisting of back pay, damages for emotional harm, and

 7   punitive damages.      On May 10, 2010, appellants filed an execution

 8   motion under Federal Rule of Civil Procedure 69(a) and N.Y.
 9   C.P.L.R. § 5225(b) against Lyons; Trim;2 Lyons’s alleged
10   successor in interest, Garrison; and Lyons’s sole owner,

11   Christopher Lyons.

12        During the proceedings leading up to this motion,

13   appellants’ counsel, Gary Rawlins, engaged in repeated acts that

14   sometimes individually, but certainly collectively, amounted to

15   willful disregard of court orders.

16        We summarize those relevant acts.           Rawlins three times

17   sought and obtained adjournments of the Initial Status Conference

18   because he was unable to proceed.          On one of these occasions he

19   was on vacation.      On another, he notified the court of the

20   proposed adjournment only one day before the Conference was

21   scheduled, in violation of Judge Cogan’s rule requiring 48 hours’

22   notice.

23        Twice Rawlins was ordered to provide notice of the Initial

24   Status Conference to Tatum, Lyons, and Trim and to file proof of



          2
              Appellants later settled the action against Trim.

                                            3
 1   service of this notice with the court within one week.      Twice

 2   Rawlins failed to do so.   After the court entered an Order to

 3   Show Cause for why he should not be sanctioned for this failure,

 4   Rawlins responded that he had served notice on Tatum (without

 5   filing proof of the service) but had mistakenly overlooked the

 6   court’s requirement to also serve notice on Lyons and Trim.      The

 7   court declined to impose sanctions.

 8        In the proceedings to execute the money judgment, Rawlins

 9   continually failed both to comply with court orders and to

10   communicate in advance with the court in an effort to reduce the

11   disruptive effects of his noncompliance.      Rawlins again violated

12   the 48-hour rule when he requested an adjournment of a damages

13   inquest the day before it was scheduled.      At one point during

14   discovery proceedings, he could not proceed with a scheduled

15   hearing on the execution motion.       Following both sides’ failure

16   to appear at the discovery hearing, the district court issued a

17   detailed scheduling order with several warnings.      These included

18   a statement that Rawlins’s nonappearance was “the latest in a

19   series of failures by plaintiffs' counsel to effectively

20   communicate with the Court and to demonstrate basic familiarity

21   with the requirements of federal practice” and a warning that

22   “[t]he Court believes that it would be acting within its

23   discretion to simply deny plaintiffs’ [execution] motion based on

24   counsel’s failure to appear, particularly in light of the history
25   of prior miscues.”   Minute Entry & Order at 1, Mitchell v. Lyons
26   Prof’l Servs., Inc., No. 09 Civ. 1587 (BMC) (E.D.N.Y. Sept. 27,


                                        4
 1   2010).   Nevertheless, the district court allowed the execution

 2   action to continue with specific scheduling dates and

 3   requirements in the scheduling order.

 4        The order set a hearing for November 8, required Rawlins to

 5   prepare certain materials, and stated specifically that “failure

 6   to comply with these procedures will result in denial of [the

 7   execution] motion without further accommodations.”      Id. at 2.

 8   Nevertheless, Rawlins appeared at the November 8 hearing without

 9   having prepared the required materials.      Despite the language in

10   the scheduling order warning of dismissal for failure to comply

11   with the court’s procedures, the court instead sanctioned Rawlins

12   $500 and rescheduled the hearing for November 15, one week later.

13        Rawlins then failed to appear timely for the rescheduled

14   hearing, even though the original scheduling order regarding the

15   hearing stated expressly that “failure to appear on time will
16   result in denial of [the execution] motion.”      Id. at 2-3.      After

17   fruitlessly waiting for him and without any notice that he would

18   ever appear, the district court dismissed the execution motion.
19        Subsequently, appellants and Rawlins moved for

20   reconsideration of the sanction.       The court gave Rawlins an

21   opportunity to explain or justify his transgressions and why the

22   sanction of dismissal should not be imposed.      Appellants as

23   individuals also made submissions to the district court, arguing
24   that their motion should not be dismissed.      After considering the

25   submissions, the district court found Rawlins’s account of his


                                        5
 1   misconduct -- mistaken scheduling notes -- to be “not . . .

 2   compelling” in light of his chronic failures and denied the

 3   motion for reconsideration.    This appeal followed.

 4                                 DISCUSSION

 5        Every district court “has the inherent power to supervise

 6   and control its own proceedings and to sanction counsel or a

 7   litigant for . . . disobeying the court’s orders.”      Mickle v.

 8   Morin, 297 F.3d 114, 125 (2d Cir. 2002); see also Lewis v.
 9   Rawson, 564 F.3d 569, 575 (2d Cir. 2009) (noting that the
10   district court’s power to dismiss an action, while codified in

11   the Federal Rules of Civil Procedure and elsewhere, is inherent).

12   We review a district court’s decision to impose sanctions for

13   failure to comply with its orders for abuse of discretion.      See

14   Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir. 1996); see also

15   Lewis, 564 F.3d at 575 (reviewing dismissal for failure to

16   prosecute).   Dismissing an action, which effectively occurred

17   here, is the harshest of sanctions and must be proceeded by

18   particular procedural prerequisites.       Specifically, notice of the
19   sanctionable conduct, the standard by which it will be assessed,
20   and an opportunity to be heard must be given.      See Mickle, 297
21   F.3d at 126 (reversing sanction of dismissal for attorney

22   misconduct due to lack of notice and opportunity to be heard);

23   cf. Agiwal v. Mid Island Mortg. Corp., 555 F.3d 298, 302-03 (2d

24   Cir. 2009) (recognizing that, in context of Federal Rule of Civil

25   Procedure 37(b) and (d) sanctions, a warning that noncompliance


                                       6
 1   with court order will result in dismissal may suffice).

 2   Moreover, the sanction of dismissal with prejudice -- the

 3   effective result of the denial of appellants’ motion for a writ

 4   of execution -- must be supported by “clear evidence” of

 5   misconduct and “a high degree of specificity in the factual

 6   findings.”   Mickle, 297 F.3d at 125-26 (quoting Oliveri v.

 7   Thompson, 803 F.2d 1265, 1272 (2d Cir. 1986)) (internal quotation

 8   marks omitted).

 9        Further, mindful that the sanction of dismissal with

10   prejudice has harsh consequences for clients, who may be
11   blameless, it should be used only in “extreme situations,” see
12   Lewis, 564 F.3d at 575–76 (internal quotation marks omitted); cf.

13   Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir.

14   1990) (reviewing Federal Rule of Civil Procedure 37(d) sanction

15   order), and even then only upon a finding “of willfulness, bad

16   faith, or reasonably serious fault,” Commercial Cleaning Servs.,

17   L.L.C. v. Colin Serv. Sys., Inc., 271 F.3d 374, 386–87 (2d Cir.
18   2001); Lucas, 84 F.3d at 535 (adopting five-factor fault standard
19   based on (1) duration of noncompliance; (2) “whether plaintiff

20   was on notice that failure to comply would result in dismissal”;

21   (3) likely prejudice to defendant from delay resulting from

22   noncompliance; (4) “balancing of the court’s interest in managing

23   its docket with plaintiff’s interest in receiving fair chance to

24   be heard”; and (5) whether the district court adequately

25   considered the adequacy of lesser sanctions).


                                      7
 1        Applying these principles, we find no defect in the

 2   procedural safeguards afforded.      The district court’s detailed

 3   scheduling order clearly stated that future noncompliance and

 4   tardiness would be met with dismissal of the execution motion and

 5   gave appellants and Rawlins the opportunity to respond.        It

 6   explicitly stated that “failure to comply with [the scheduling

 7   order’s] procedures will result in denial of [the execution]

 8   motion without further accommodations.”        Minute Entry & Order at
 9   2, Mitchell v. Lyons Prof’l Servs., Inc., No. 09 Civ. 1587 (BMC)
10   (E.D.N.Y. Sept. 27, 2010).    The order further warned Rawlins that

11   “failure to appear on time will result in denial of [the

12   execution] motion.”    Id. at 2-3.       This language indisputably gave

13   notice to Rawlins that the execution motion would be dismissed

14   for future transgressions.

15        Once the execution motion was denied, appellants had another

16   opportunity to be heard in connection with their motion for

17   reconsideration, that, when coupled with the clear notice of

18   impending sanctions, satisfies the procedural safeguards outlined
19   in Mickle.     An opportunity to be heard before a dismissal takes

20   effect is not required when the notice of impending dismissal is

21   clearly communicated, in the context of a scheduling order or by

22   other means.    Mickle’s requirements are met so long as the

23   opportunity to be heard occurs before or at the time of dismissal

24   or, as in this case, at a separate motion for reconsideration.

25   Cf. Link v. Wabash R.R. Co., 370 U.S. 626, 632 (1962) (noting


                                          8
 1   that a Rule 60(b) motion provides an “escape hatch” with respect

 2   to counsel’s opportunity to be heard, which can render even a

 3   lack of notice prior to sanction dismissal “of less

 4   consequence”).

 5        Finally, because dismissal of the action is particularly

 6   harsh, the dismissal must be accompanied by “a high degree of

 7   specificity in the factual findings.”   Mickle, 297 F.3d at 125-26

 8   (internal quotation marks omitted).   When dismissing appellants’

 9   case in open court, the district court did not specifically

10   elaborate on the reasons for dismissal.   Nevertheless, given the

11   specificity in the court’s prior scheduling order and its

12   reference in open court to Rawlins’s repeated failures to comply

13   with court orders, the court’s reasons for refusing to enforce

14   appellants’ execution motion were self-evident, thereby providing

15   them with an opportunity to respond in an informed manner to the
16   reasons for the sanction.   See id.
17        A consideration of the five Lucas factors also supports a
18   finding of “reasonably serious fault,” Commercial Cleaning
19   Servs., 271 F.3d at 386, justifying the sanction imposed.     The

20   first four factors weigh in favor of dismissal:   (1) instances of

21   noncompliance occurred throughout the entire 18 months of the

22   district court proceedings; (2) notice was given by the court two

23   months before the motion was dismissed that future misconduct

24   would result in dismissal; (3) further delays would continue to

25   waste the time and resources of adversary parties; and (4) the


                                      9
 1   court has a clear need to manage its docket, which Rawlins

 2   seriously disrupted.   Conduct such as occurred here can impose

 3   serious costs on adversaries, on parties to other matters before

 4   the court who may find their scheduling disrupted or decisions

 5   delayed, and on the efficiency with which the district court

 6   addresses its business.

 7        We take issue with the district court only with regard to

 8   the final Lucas factor, whether alternative sanctions not

 9   involving the serious harm to counsel’s clients were adequately

10   considered. The district court first threatened a lesser $500

11   sanction against Rawlins, to no avail.    However, on the present

12   record, we cannot determine, and the district court has made no

13   findings as to, whether the delays leading to dismissal were

14   solely a result of Rawlins’s actions and not those of his

15   clients.   We have held that “the more the delay was occasioned by

16   the lawyer’s disregard of his obligation toward his client, the

17   more this . . . argues in favor of a less drastic sanction
18   imposed directly on the lawyer.”     Dodson v. Runyon, 86 F.3d 37,
19   40 (2d Cir. 1996).   It is true that a client is typically bound

20   by the acts of his lawyer, see Link, 370 U.S. at 633–34 & n.10,

21   but as we noted in Dodson, “[t]his principle, however, does not

22   relieve the district court of the obligation to consider the

23   relevant factors before dismissing an action –- especially the

24   suitability of lesser sanctions,” 86 F.3d at 40.

25


                                     10
 1        A wide panoply of sanctions was, and is, at the district

 2   court’s disposal.   These options include monetary sanctions on

 3   counsel and the assessment of costs and counsel fees generated by

 4   the delinquency.    A suspension from practice may be imposed for a

 5   failure to pay such sanctions.   See In re Flannery, 186 F.3d 143,

 6   146 (2d Cir. 1999) (per curiam).      The district court’s

 7   disciplinary and contempt powers would support sanctions beyond

 8   costs and fees, such as mandated disclosure by counsel of his

 9   sanctionable conduct to the bar, to future clients, and to courts
10   in which Rawlins may appear.   See Chambers v. NASCO, Inc., 501
11   U.S. 32, 44–45 (1991); Gallop v. Cheney, 667 F.3d 226, 230 (2d

12   Cir. 2012) (per curiam) (requiring attorney to provide notice of

13   his sanctions to any federal court within the Second Circuit for

14   a period of one year); Dodson, 86 F.3d at 41 (citing Shea v.

15   Donohoe Constr. Co., Inc., 795 F.2d 1071, 1078 (D.C. Cir. 1986)

16   (noting that sanctions may include communication of attorney’s

17   actions to clients and the bar association)).     While a district

18   court need not exhaust these alternative possibilities, we do not
19   know on the record before us whether these alternatives were ever

20   considered or the grounds on which they were rejected.       In this

21   case appellants are “unsophisticated,” Minute Entry & Order at 2,
22   Mitchell v. Lyons Prof’l Servs., Inc., No. 09 Civ. 1587 (BMC)
23   (E.D.N.Y. Sept. 27, 2010), and the sanctionable conduct may have

24   been due entirely to counsel’s personal irresponsibility and

25   afforded no strategic advantage to appellants.     See Dodson, 86


                                      11
 1   F.3d at 40.   We also note that appellants had secured a judgment

 2   and only execution of the judgment remained.   We therefore remand

 3   to allow the district court to give explicit consideration to the

 4   full range of other available sanctions, after according a

 5   hearing to the parties and Rawlins on the issue, and only then,

 6   if necessary, effectively to dismiss the action.

 7                               CONCLUSION

 8        For the foregoing reasons, the district court’s final order

 9   denying appellants’ writ of execution is VACATED and the case is

10   REMANDED for further proceedings consistent with this opinion.

11   Appellants’ attorney is directed to furnish a copy of this

12   opinion to his clients.




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