The opinion of the court was delivered by: Magistrate Judge Carlson
I. Statement of Facts and of The Case
This case presents a sad coda to a government service career spanning more than three decades. Currently pending before the Court is Plaintiff Monica O'Donnell's third motion for sanctions against Defendants and their counsel. (Doc. 103.) This motion arises out of an extraordinary and troubling circumstance, the unilateral decision of government defense counsel to elect to take a European vacation at a time when counsel was scheduled for a pre-trial conference and trial before this Court, coupled with the wholesale failure of counsel to disclose this scheduling conflict to the Court, opposing counsel and her own supervisors for a span of almost five months.
The background surrounding these unfortunate events can be simply summarized. In January 2011, Gwedolyn Mosley, an attorney with more than 30 years litigation practice experience in state government, was assigned as defense counsel in this case. On January 20, 2011, this Court entered a scheduling order in this case. That order provided in clear and precise terms for the following litigation schedule in this matter:
Close of Fact Discovery: February 14, 2011 Dispositive Motions and Supporting Briefs Due: February 14, 2011 Local Rule 16.3 - Attorney Conference and Exchange of Proposed Jury Instructions: On or before: April 11, 2011 Motions In Limine Due: April 18, 2011 Pretrial Memoranda Due: April 25, 2011 Proposed Jury Charge, Proposed Voir Dire Questions and Objections to Proposed Jury Charge: May 2, 2011 Pretrial and Settlement Conference: May 9, 2011 at 1 :30 P.M.
Trial Brief Due: May 16, 2011 Trial: May 23, 2011 at 9:30 a.m. (Doc. 46.)
At the time that this order was entered, there were manifold reasons for defense counsel to be particularly attentive to her professional obligations of candor, and timeliness, in this case. At the outset, this litigation had already been plagued by months of delay which occurred when defense counsel led a mediator and plaintiff's counsel to believe that this case had settled, and then permitted the court to dismiss the case based upon this reported settlement, even though defense counsel became aware that her clients had not agreed to settle this matter.
Moreover, at the time of the entry of this January 20, 2011, scheduling order, defense counsel's alleged failure to fulfill her professional responsibilities were already the subject of two separate pending motions for sanctions, motions citing counsel for failing to provide discovery and the failure to participate in good-faith in settlement and mediation efforts. (Docs. 33 and 39. ) These two pending sanctions motions were a further circumstance that called out for particular care in this case. Indeed, because the Court had been disturbed by the prior conduct of counsel this case, the Court took the additional step in this scheduling order of advising and admonishing the parties that:
The Court notes that the course of this litigation has inspired some confusion and acrimony, as reflected by the two motions for sanctions which are now pending. In an effort to eliminate or reduce these problems, IT IS HEREBY ORDERED THAT:
1. The Court will convene a telephonic case management conference with the parties Wednesday, February 9, 2011, at 1:30 p.m. The conference will be held telephonically, with the Plaintiff responsible for placing the call to the Court once all parties are on the line. The purpose of this conference is to assure that all discovery is being completed in a timely fashion and that there is no further confusion of the type which has inspired sanctions litigation in this case. The Defendants shall be represented by trial counsel, and the Deputy Chief Susan Forney. (Doc. 46.)
Thus, on January 20, 2011, defense counsel's professional responsibilities and her personal circumstances in this case provided her with every incentive to adopt a path of conscientious candor with respect to both the Court, and opposing counsel. Yet presented with a situation that called out for candor, counsel inexplicably chose a course of continuing concealment and non-disclosure relating to a matter of vital significance in this litigation; specifically, whether counsel intended to appear for the pre-trial conference on May 9, 2011 and be prepared for trial on May 23, 2001, as ordered by the court.
In fact, it is now sadly apparent to the court that defense counsel could not have intended to appear for court, as ordered, because counsel concedes that, on January 20, 2011, when this court entered its scheduling order, she had already scheduled a European vacation, "beginning on May 7 . . . until May 20, 2011." (Doc. 107.) Indeed, according to counsel she would not have returned to the United States until May 22, 2011, the day before this trial was scheduled to commence. Thus, it is entirely undisputed that, at the very time this trial was scheduled by the court, defense counsel planned to be outside of the United States during a critical juncture in this scheduled litigation.*fn1
While defense counsel now admits that she planned to leave the United States during the time when this matter was scheduled for pre-trial conference, and would not have returned to this country until the very eve of trial, some aspects of this longstanding overseas travel planned by defense counsel still remain shrouded in mystery. In particular, we could not ascertain when defense counsel, in fact, scheduled this trip which conflicted with her litigation responsibilities. There is a singular source for this mystery and confusion -- defense counsel -- who reported to this court that she made her travel plans "during the first of January," (Doc. 107), while claiming in pleadings filed before another judge of this court in a separate lawsuit that she had actually scheduled her European vacation as early as November, 2010. See Green v. Sneath, No. 09-CV-154 (Doc. 74). Despite questioning from the Court, defense counsel has never provided an adequate explanation for why she provided two different, and contradictory, accounts of this travel to two judges of this court.
Over the following four months after this trial schedule was set defense counsel engaged in a pattern of non-disclosure regarding this scheduling conflict, ignoring multiple opportunities to place the Court and opposing counsel on notice of this scheduling conflict. Thus, on January 28, 2011, defense counsel filed a motion to amend the pre-trial schedule which inexplicably failed to mention the fact that counsel did not plan to be in the United States during the crucial days preceding the scheduled trial.(Doc. 50.) We granted this motion, reflecting our willingness to work with counsel on scheduling issues that are disclosed to the court. (Doc. 52.) Despite this clear indication of the Court's willingness to make timely revisions in this scheduling order, based upon candid disclosures by counsel, defense counsel took no action to notify us of her scheduling conflict.
Four days later, on February 4, 2011, the Court entered an order granting, in part, a sanctions motion filed against defense counsel.(Doc. 53.) That opinion sanctioned counsel for her lack of candor during settlement discussions, citing her for her persistent failure to disclose material facts to the court and opposing counsel, and concluded with an admonishment which spoke directly to the need for candor by counsel, stating:
In closing, the Court will once again take the opportunity to urge the parties to commit themselves to communicating fully, candidly, and timely with one another, and with the Court, as this litigation moves forward. Clearer and more fulsome communication between counsel in this case would have helped considerably to clear up the confusion that seems to have persisted in this matter up until this point. We expect that the parties' mutual commitment to greater communication will go a long way towards ensuring an efficient and fair resolution of this action, whether through a trial or otherwise. (Id., p. 26.) Despite this explicit statement regarding the Court's expectations of candor by counsel, defense counsel persisted in her failure to disclose the fact that she intended to travel to Europe at a time when she was scheduled for trial before this court.
On February 18, 2011, the Court held a telephone conference with the parties for the purpose of ensuring that the parties adhered to this pre-trial schedule. This was the telephonic case management conference previously set by the Court, which the Court had directed defense counsel and her supervisor to both attend. (Doc. 55.)
At this conference we, once again, underscored the need for candor by counsel.*fn2 Despite these admonitions and warnings, March and April passed without any notification from defense counsel of her own planned absence from the pre-trial conference, or her intention to effectively abandon this litigation for the weeks immediately preceding the May 23, 2011 scheduled trial of this case. Thus, although defense counsel filed a series of pleadings over this two-month span, (Docs. 65, 66, 67, 68, 77 and 81), she never informed the Court or opposing counsel of her planned absence.
Moreover as the May trial date approached, defense counsel began to systematically default on her litigation obligations. Thus, when the plaintiff filed a timely motion in limine, defense counsel neglected to submit any response, compelling the court to grant the motion as unopposed. Defense counsel also failed to file a pre-trial memorandum by April 25, 2011, as directed by the Court, and neglected to file proposed jury instructions by May 2, 2011, as ordered by the Court.
Instead of complying with these trial deadlines, or notifying the Court of her impending scheduling conflict, defense counsel chose to follow an elliptical path, which sought to delay the trial without disclosing the fact that counsel planned to depart the United States for vacation and did not intend to address critical pre-trial matters. This course of conduct commenced on May 2, 2011 at 6:47 p.m., when the Court received a motion for stay from the defense counsel, (Doc. 86), which sought to stay filing deadlines previously set by the court on February 1, 2011, many of which had already lapsed without action by defense counsel.
On May 3, 2011, we denied this request, noting that defense counsel's request was untimely, and was opposed by the plaintiff, who had complied with this litigation schedule. (Doc. 87.) We then instructed the parties as follows: "Therefore, the motion is DENIED without prejudice to the parties further discussing a timetable for litigation of claims at the pre-trial conference scheduled on May 9, 2011 at 1:30 p.m. In the meanwhile the defendants shall forthwith comply with the schedule set by the court on February 1, 2011." (Id.)
This Court's May 3 order placed counsel on notice of her responsibilities in unmistakably clear terms. That order, which denied a motion to continue the trial schedule, and underscored the Court's expectation that it would be conducting a pre-trial conference with all counsel in this case on May 9, 2011, plainly put defense counsel on notice that her personal travel plans--which had been set for months and entailed a departure from the United States on May 7 with a return on May 22--now irreconcilably conflicted with her professional responsibilities in this case. In light of this order, May 3, 2011 constituted defense counsel's last, best opportunity for candor with the Court.
Counsel forfeited this opportunity for honesty. Thus, counsel took no steps to notify the Court of her impending scheduling conflict on May 4 or 5, 2011. Instead, defense counsel waited until 3:39 p.m., on May 6, 2011--mere hours before her scheduled departure from the United States--to file a motion captioned "Unopposed Motion for Continuance." (Doc. 95.) In this motion, defense counsel misstated the position of the plaintiff with respect to this continuance request. Specifically, notwithstanding counsel's characterization of the motion as "unopposed", the motion was not, in fact, unopposed. Quite the contrary, plaintiff's counsel opposed this request, as he had opposed the identical request made by defense counsel on May 2, 2011. Furthermore, beyond this misleading description in the caption of this pleading, the motion persisted in repeating claims that had been rejected by the Court as grounds for continuance, and concealed from the Court a material fact, the fact that defense counsel was presently en route to Spain and had no intention of attending the pre-trial conference.*fn3
Because of troubling inconsistencies in this motion, we denied this request on May 6, 2011, and reaffirmed our expectation that all parties should adhere to our previously set pre-trial and trial schedule. (Doc. 95.) On May 9, 2011, we then learned, for the first time, that defense counsel had departed the United States without any prior notice, explanation or excuse, and would not return to this country until the date set for trial in this case. Defense counsel's unilateral action forced the ...