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Maxine Snydman v. Amper

July 15, 2011

MAXINE SNYDMAN,
PLAINTIFF
v.
AMPER, POLITZINER & MATTIA, LLP, DEFENDANT.



The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

MEMORANDUM OPINION

Presently before the Court is the motion of Defendant Amper, Politziner & Mattia, LLP*fn1 ("Amper") for sanctions of Plaintiff Maxine Snydman ("Snydman") and her counsel, Alan B. Epstein, Esquire ("Epstein") (Doc. 22). Snydman has filed her response (Doc. 24) and Amper has filed its reply (Doc. 29). Judge Baylson held oral argument on March 22, 2011 (Doc. 31) and, on April 5, 2011, referred the matter to this Court for disposition pursuant to Fed. R. Civ. P. 72(a) (Doc. 36).

Amper seeks sanctions in the form of costs and attorneys fees against both Snydman and Epstein for their failure to comply with a Court order regarding preparations for a court-ordered settlement conference and what Amper characterizes as bad faith conduct in connection with that conference. (Def. Mem. [Doc. 22-1] at 1.) Amper contends that the Court is empowered to issue the requested sanction through either its inherent power, Fed. R. Civ. P. 16(f), or 28 U.S.C. § 1927.

(Id. at 4.) Snydman contends that neither she nor her counsel engaged in any sanctionable conduct, that Defendant's sanctions motion is frivolous, and that the Court should award to her the attorney's fees and costs that she has incurred in responding to Amper's motion. (Pl. Mem. [Doc. 24-1] at 19 & Prop. Order [Doc. 24-5].)

For the reasons set out below, we will sanction Epstein and Snydman, jointly and severally, for two violations of an order of this Court pertaining to a settlement process to which the parties had consented.

I. RELEVANT FACTS*fn2

Snydman filed her complaint on March 26, 2010. Some thirteen weeks later, on or about June 30, 2010, Epstein communicated to counsel for Amper, Mark A. Saloman, Esquire ("Saloman"), Plaintiff's settlement demand of $150,000. (Epstein Decl. [Doc. 24-2] ¶ 5; Saloman Decl. [Doc. 35] ¶ 2.) Amper did not immediately respond to that demand, but five weeks later, on or about August 2, 2010, served an offer of judgment of $23,265.89 upon Plaintiff. (Salomon Decl. ¶ 7; Epstein Decl. ¶ 6.)

On July 26, 2010, counsel participated in an initial scheduling conference at which Judge

Baylson "suggested that the parties consider participating in a settlement conference" before the undersigned. (Salomon Decl. ¶ 4.) Saloman advised Judge Baylson that Amper was willing to attend a settlement conference, but Epstein indicated that he did not believe it would be fruitful until Plaintiff could obtain written discovery to ascertain the full extent of her alleged losses. (Salomon Decl. ¶¶ 5-6; Epstein Decl. ¶ 4.) Following that initial teleconference, Judge Baylson issued a Scheduling Order on July 28, 2010 advising the parties that "Magistrate Judge David Strawbridge will contact counsel as to whether settlement discussions have taken place and to schedule a settlement conference." (Doc. 10 ¶ 3.) Pursuant to that directive, and to assess the "case status and [] discuss a possible settlement conference date," the undersigned convened a telephone status conference with counsel on October 8, 2010. See Notice of Aug. 27, 2010 (Doc. 12). We did not, at that time, list the matter for an in-person conference in that Epstein indicated that he would need to speak with his client and because it appeared that there was not then a reasonable prospect for settling the matter. My staff contacted counsel a month later, explained that it was our understanding from the October 8th telephone conference that there had not been a prospect for settlement, but inquiring whether counsel had "thought it over and might now have reconsidered and would be interested in a settlement conference." See E-mail message from Chambers to Esptein and Saloman (Nov. 8, 2010).*fn3 Counsel separately contacted my chambers in response to indicate that they believed a settlement conference would be helpful and expressing their willingness to participate in a settlement conference. See, e.g., Confirming e-mail message to counsel from Chambers (Nov. 23, 2010). (Mot. at Ex. 1; Salomon Decl. ¶ 10; Epstein Decl. ¶ 7.) Counsel agreed upon a January 2011 date for the settlement conference. The conference was subsequently re-scheduled for February 1, 2011 due to a scheduling conflict that arose in the Court's calendar. (Docs. 17, 19.)

Both the initial Settlement Conference Order of December 6, 2010 and the Amended Settlement Conference Order of January 5, 2011 set out the Court's expectations for the upcoming settlement conference, including the fact that personal attendance was required of counsel as well as client representatives and that "[t]he Court fully expects that the parties have a serious interest in pursuing settlement." See, e.g., Order, Jan. 5, 2011, at 1. (Doc. 19.) The Amended Settlement Conference Order also set forth the protocol that the undersigned regularly employs, consisting of the following elements: (1) for Plaintiff to "set out to [D]efendant a written good faith demand" "[p]rior to the conference, but not later than" approximately fourteen days before the scheduled conference date (Doc. 19 at 1); (2) for Defendant to "respond to the demand in good faith on or before" a date about three days later and to then "initiate a discussion with opposing counsel regarding the parties' settlement positions" (Doc. 19 at 1); and (3) the submission to the undersigned and to opposing counsel of a "settlement memorandum" that was not to exceed four pages and was to address eight enumerated topics, including "[t]he last demand and/or offer" (Doc. 19 at 1-2). In this case, then, Plaintiff was ordered to set out a written good-faith demand no later than January 18, 2011, to which Defendant was under an obligation to "respond" by January 21, 2011 and to then initiate a dialogue with Epstein through Saloman.

It is undisputed that Plaintiff did not set out a written demand in response to the Amended Settlement Conference Order of January 5, 2011. See Saloman Decl. ¶¶ 13, 15 (noting no written demand received by January 18, 2011); Epstein Decl. ¶ 10 (indicating only that Plaintiff had always "maintained a settlement offer of $150,000" and that "[that] figure was communicated to Defendant's counsel" in an unspecified manner "on at least two occasions," but failing to state when communications took place either by date or in relation to the entry of either of the Court's Settlement Conference Orders).

Snydman, through Epstein and co-counsel Nancy Abrams, Esquire, submitted to the undersigned by the January 27, 2011 deadline and served upon counsel for Amper a "Mediation Statement," purportedly pursuant to the Court's January 5th Order. Her submission consisted of four pages of her "Statement of Facts" and four pages of her "Statement of Damages."*fn4 It did not address several of the items that were required to be included in the parties' settlement memoranda as set forth in the Court's January 5th Order, including "[t]he last demand and/or offer." Amper's memorandum, while not addressing the factual and legal basis of its position concerning damages,*fn5 otherwise addressed the items enumerated in the Court's Order, including reporting on "Prior settlement discussions:"

Plaintiff made an oral settlement demand on or about June 30, 2010 for $150,000; Amper served an Offer of Judgment on August 2, 2010 in the amount of $23,265.89. [citation omitted.] Contrary to the Court's Order, Plaintiff did not provide a written good faith demand to defense counsel by January 18, 2011. (Amper Sett. Mem. at 4.) In that no written good faith demand had been provided to counsel for Amper by Snydman subsequent to the Court's Orders and before January 18, 2011, there was no demand to respond to by the January 21, 2011 deadline set forth in the Court's January 5, 2011 Order. It does not appear that at any point prior to the settlement conference, and even after receipt of the Snydman "Mediation Statement" that did not reflect the last demand, Amper "then [] initiate[d] a discussion with opposing counsel regarding the parties' settlement positions." (Doc. 19 at 1.)

The undersigned spoke on January 31, 2011 with Abrams, who had transmitted the "Mediation Statement" that bore Epstein's signature above both of their printed names as counsel for Plaintiff. Abrams communicated that Plaintiff's settlement demand remained $150,000. (Abrams Decl. ¶ 3; Saloman Decl. ¶ 16.)*fn6 Neither during this call nor at any other time prior to the settlement conference did Snydman communicate to the Court - or, more importantly, to Amper - that her demand of $150,000 was firm.

Snydman appeared at the conference on February 1, 2011 with Epstein and with her brother-in-law as financial advisor. Saloman appeared with Amper's managing partner, Jay Weinstein. Saloman traveled from Newark, New Jersey to the Philadelphia federal courthouse for the conference. The conference lasted approximately 3 1/2 hours. See Doc. 21 (minute sheet). After meeting with the defense, the undersigned indicated to the Plaintiff's group his belief that he might be able to convince Amper to increase its offer from its $23,265 offer of judgment - its only offer of settlement - to $50,000. (Epstein Decl. ¶ 16.) Snydman and Epstein responded to the undersigned that that amount was not acceptable. (Epstein Decl. ¶ 17.) As Epstein words it, "and the mediation concluded without reaching a resolution[.]" (Id.) Saloman's declaration memorializes that, after that meeting with the Plaintiff's group, the undersigned reported to Saloman and Weinstein that "Plaintiff refused to engage in any negotiation concerning her June 30, 2010 settlement demand." (Saloman Decl. ¶ 19.) We take it as uncontested that Plaintiff did not manifest a willingness at any point in the February 1, 2011 settlement conference to compromise her demand from the $150,000 figure that she had maintained since June 30, 2010.*fn7

Amper contends that it expended $9,225 in legal costs leading up to the settlement conference ($1,237.50 in counsel's communications with the Court and the client concerning the scheduling of the conference, $6,187.50 for 13.75 hours of attorney time spent preparing Amper's settlement memoranda, and $1,800 for 4 additional hours of attorney time spent in "preparation for [the] settlement conference"); $3,189.18 in attorney time and travel expenses of counsel on February 1, 2011; and $2,520 in lost corporate billing time of its corporate representative, Weinstein, due to his preparations for, travel to, and attendance at the ...


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