The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Defendants' motion for sanctions. (Doc. No. 127.) The motion has been briefed and is ripe for disposition. For the reasons that follow, Defendants' motion will be denied.
During pretrial matters in the above captioned case, it became apparent that Plaintiff's original trial counsel was experiencing personal difficulties affecting his ability to represent his client. At times throughout the litigation, he relied heavily on other counsel, who provided assistance and actually took over portions of the case during his extended absences.
During a pretrial conference in May 2007, Plaintiff's original trial counsel informed defense counsel that he intended to call twelve previously unidentified witnesses at trial. On May 8, 2007, Defendants filed a motion in limine seeking to preclude the testimony of the late-identified witnesses (Doc. No. 70), and on July 27, 2007, the Court entered an order granting Defendants' motion (Doc. No. 81).
During a status conference held on August 23, 2007, this Court, out of concern for fairness to the Plaintiff under the circumstances, suggested that the attorneys assuming responsibility for the prosecution of Plaintiff's case, Douglas Goldhaber and Sherri Coover,*fn1 file a motion for reconsideration as to the excluded witnesses, whom Plaintiff contended were important to his case. The Court issued an order establishing an August 31, 2007, deadline for filing any motion for reconsideration, but no motion was filed until October 26, 2007. Despite the motion's lateness, the Court granted the motion on November 16, 2007, and issued an order allowing Plaintiff to call eight of the twelve previously excluded witnesses. The Court indicated to Defendants that they could seek sanctions other than exclusion, if appropriate.
Pursuant to representations by Attorney Goldhaber, Plaintiff's lead counsel at the time, that Plaintiff intended to call the reinstated witnesses, defense counsel prepared for the testimony of the reinstated witnesses and deposed two. At trial, only one of the potential eight was actually called as a witness. In the motion before the Court, Defendants seek sanctions in the amount of the cost of preparing for, conducting, and producing transcripts of the depositions.
Defendants seek sanctions under Middle District Local Rule 83.3, which provides that if counsel acts in a dilatory manner or fails to comply with any order of court, and the Court determines that dismissal or sanction against the party itself would be unjust, the Court may "assess reasonable costs directly against counsel whose action has obstructed the effective administration of the court's business." M.D. Pa. L.R. 83.3(b).*fn2
The decision whether to impose sanctions rests soundly in the discretion of the court. M.D. Pa. L.R. 83.3.1. Among the relevant considerations are the presence of bad faith or extenuating circumstances and prejudice to the opposing party. See Moore's Federal Practice § 16.92; see also Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 242 (3d Cir. 2007) (imposing sanctions notwithstanding absence of bad faith where opposing party was severely prejudiced).
Defendants argue that Plaintiff's lead counsel failed to either timely identify Plaintiff's witnesses or to timely seek reconsideration of the motion precluding those witnesses, and that those failures caused counsel for Defendants to expend time and money to investigate and prepare for the potential testimony of the eight late-identified witnesses in the last days leading up to the trial.*fn3
Under the circumstances of this case, the Court concludes that Defendants' argument does not afford an adequate basis for the imposition of sanctions because it was not the timing of Plaintiff's announcement that caused Defendants to incur the expense of preparing for these witnesses' potential testimony: Defendants would have expended efforts to be properly prepared for such testimony regardless of when the individuals were injected into the litigation. Indeed, the expense was incurred simply because the individuals were named as potential witnesses.
It is possible that Defendants wish this Court to infer that the witnesses were introduced in bad faith because only one of the eight was actually called to the stand during the trial. However, Plaintiff's counsel offers a reasonable and proper explanation: the decision not to call the other witnesses was a strategic legal decision, made with the consent of Plaintiff, after the presentation of the trial testimony of Plaintiff. Such a ...