Opinion
Civil Action No. 3:98-CV-1434-L
February 22, 2001
ORDER
Before the court are Defendant's Motion for Sanctions, filed August 26, 1999; Plaintiffs' Motion to Extend Mediation Deadline, filed August 27, 1999 ("Motion 1"); and Plaintiffs' Motion for Order Rescheduling Mediation and Discovery Deadline, filed August 27, 1999 ("Motion 2"). Plaintiffs request that the mediation deadline be rescheduled for either 30 (Motion 1) or 60 days (Motion 2), and the discovery deadline be rescheduled for 60 days (Motion 2 only), after the resolution of the parties' motions for summary judgment. Based on the filings by the parties, the court concludes that mediation would serve no purpose at this time. Plaintiffs' basis for another extension of the deadline for discovery is apparently that, once the United States Magistrate Judge filed his report and recommendation on July 13, 1999, recommending that Plaintiffs' claims be dismissed or sharply limited, the amount at stake did not warrant further expenditures for discovery until final resolution of the magistrate judge's recommendation. The court has now, by its order filed February 21, 2001, adopted the magistrate judge's recommendation. If Plaintiffs thought that further expenditures for discovery were not warranted when the dismissal or limitation of their claims was only a probability, the court concludes that they would not desire to conduct further discovery now, after the dismissal or limitation of their claims has been confirmed by the court. Accordingly, Plaintiffs' motions for extension of the mediation and discovery deadlines are hereby denied without prejudice. If and when Plaintiffs demonstrate that further discovery or mediation is appropriate, they may re-urge their motions.
Plaintiffs have retained counsel located in Montana as well as local counsel. The first motion filed on August 27, 1999 was filed by local counsel, and the second was filed by their counsel in Montana. For future reference, the court expects counsel in such situations to minimize duplicative and inconsistent filings by coordinating their efforts.
Defendant's motion for sanctions is based on Plaintiffs' failure to attend two scheduled mediation sessions, requiring last minute cancellations of same. As sanctions, Defendant requests that the court dismiss all of Plaintiffs' claims and require Plaintiffs to pay the mediator his customary fee ($2,000) for the second session as a cancellation fee. Plaintiffs explain their last minute cancellations of the two mediation sessions as being due to: 1) severe illness, requiring hospitalization, after one of Plaintiffs flew to Dallas for the first mediation session; and 2) the prohibitive cost and effort to make last minute arrangements to attend the second mediation session when they were advised, the day before the session, that attendance by telephone would not be acceptable. While the stated reason would certainly justify a last minute cancellation of the first session, the court concludes that the last minute cancellation of the second session is not similarly excused. The court notes that one plaintiff apparently flew to Dallas for the first session, demonstrating Plaintiffs' awareness that attendance in person is normally required for mediation. If Plaintiffs wished to attend the second session by telephone, they should have confirmed whether that was acceptable long before the scheduled date, when they could still make arrangements to appear in person if necessary. The logistical difficulties and prohibitive cost that they cite are a result of their delay, not the mediator's requirement that they appear in person, and do not justify their failure to attend the session.
In the court's order of July 6, 1999, establishing the revised deadline for mediation, the court noted that the parties had failed to comply with its earlier mediation order and warned that "[i]f the parties do not participate in mediation as directed by this order, sanctions will be imposed." The court concludes that sanctions against Plaintiffs are warranted. Dismissal of all of their claims, however, is an overly harsh sanction for this violation of the court's order. Accordingly, the court grants in part and denies in part Defendant's motion. Plaintiffs are directed to pay the mediator, within 30 days from the date of this order, a cancellation fee of $2,000.