Woody Allen is quoted as saying that “Eighty percent of success is showing up.” We’re not sure of the exact weight that the federal courts afford to actually appearing for proceedings, but — much like Allen — judges believe that showing up is critical.
So what happens when a lawyer doesn’t bother to show up? Typically, that results in attorney sanctions. In extreme cases, it could interfere with a plaintiff’s judgment. But the Second Circuit Court of Appeals ruled this week that penalizing a client should be a last resort.
The plaintiffs in the case sued their former employer and two supervisors for employment discrimination. They obtained default judgments after the defendants failed to appear. (Again, with the showing up ...)
At a damages inquest, the district court awarded $266,590 in back pay, damages for emotional harm, and punitive damages. The plaintiffs then filed an execution motion against the remaining defendants and successors. And that's where their default "victory" began to slip away. As the Second Circuit explains, "During the proceedings leading up to this motion, [plaintiffs'] counsel, Gary Rawlins, engaged in repeated acts that sometimes individually, but certainly collectively, amounted to willful disregard of court orders."
Sometimes he submitted last-minute requests for adjournment. One time, he showed up unprepared. One time, he didn't show up at all. After a $500 attorney sanction and multiple dismissal threats, the district court dismissed the plaintiffs' execution motion.
The plaintiffs and Rawlins moved for reconsideration of the sanction. While the Second Circuit agreed that the district court "had more than an adequate basis to sanction counsel and accorded the required procedural safeguards," but concluded that "further findings are needed to support a sanction that falls entirely on the clients rather than principally on the lawyer."
In a brief opinion, the appellate court reminded the district court that the sanction of dismissal with prejudice has harsh consequences for clients -- who may be blameless -- and it should be used only in "extreme situations." Even then, dismissal should be based only upon a finding "of willfulness, bad faith, or reasonably serious fault." In making such a determination, a court should consider the five Lucas factors:
- Duration of noncompliance;
- Whether plaintiff was on notice that failure to comply would result in dismissal;
- Likely prejudice to defendant from delay resulting from noncompliance;
- Balancing of the court's interest in managing its docket with plaintiff's interest in receiving fair chance to be heard; and
- Whether the district court adequately considered the adequacy of lesser sanctions.
The Second Circuit remanded the matter because the record did not reflect whether the district court considered lesser sanctions.
Here, the appellate court's Lucas analysis revived the case (at least for now) but the plaintiffs never should have been so close to losing their default judgment. The moral of the story? Just show up.
- Mitchell v. Lyons Prof'l Servs., Inc. (Second Circuit Court of Appeals)
- Circuit Vacates Attorney Sanctions, Suggests New Path to Penalties (FindLaw's Tenth Circuit Blog)
- Attorney Sanctions for Frivolous Appeal in 9/11 'Truther' Lawsuit (FindLaw's Second Circuit Blog)