The opinion of the court was delivered by: Magistrate Judge Carlson
I. Statement of Facts and of the Case
In this case we are now called upon to write the final chapter in the 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 in May 2011, 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.
We have already determined that this fundamental breach of counsel's professional obligations, which occurred after counsel had previously been cited in this case for other professional misconduct, see, O'Donnell v. Department of Corrections, No. 09-1173, 2011 WL 398399 (M.D. Pa. Feb. 4, 2011), warrants some sanction, in the form of an attorney's fee award. See O'Donnell v. Department of Corrections, No. 09-1173, 2011 WL 3163230 (M.D. Pa. July 26, 2011). Because the facts of this matter have been fully discussed, and are fully familiar to the parties, we will not re-state them at length in this opinion. We are compelled, however, to briefly address one belated factual assertion made by defense counsel in the latest filing in this case.
On September 19, 2011, defense counsel filed a brief in this matter which belatedly claimed that these sanctions proceedings were improper because defense counsel had been denied due process, by being denied notice and an opportunity to be heard. (Doc. 183) This is an extraordinary assertion. In fact, there is, perhaps, some unintended irony to this belated claim, since defense counsel provided the Court and the parties in this litigation absolutely no notice of her intention to forego the pre-trial conference and trial preparation in this case in May of 2011, but now complains that she received inadequate notice of these sanctions proceedings, proceedings which stemmed from her wholesale failure to provide any notice of material facts to the Court and opposing counsel.
In any event, this belated claim has no merit. While "the Due Process Clause of the Fifth Amendment requires a federal court to provide notice and an opportunity to be heard before sanctions are imposed on a litigant or attorney," Martin v. Brown, 63 F.3d 1252, 1262 (3d Cir. 1995), it is clear that the requirements of due process are fully met when, "the party against whom sanctions are being considered [receives notice] of the legal rule on which the sanctions would be based, the reasons for the sanctions, and the form of the potential sanctions." In re Tu Tu Wells Contamination Litigation, 120 F.3d 368, 379 (3d Cir. 1995).*fn1
These due process requirements were fully met in this case. At the outset, counsel had ample notice of the her rights and responsibilities in connection with this sanctions matter, because this was, sadly, the second sanctions proceedings which the Court had been compelled to conduct in this case. See O'Donnell v. Department of Corrections, No. 09-1173, 2011 WL 398399 (M.D. Pa. Feb. 4, 2011). In any event, this Court's orders of May 10 and 12, 2011, plainly gave counsel notice of the basis for this sanctions hearing and an opportunity to be heard. (Docs. 98 and 101) Indeed, those orders set both briefing and hearing schedules for any sanctions motion, thereby ensuring both notice and a full opportunity to be heard for defense counsel. (Id.)
The plaintiff's sanctions motion then provided defense counsel with further notice of these proceedings, and specifically placed counsel on notice that the plaintiff was seeking sanctions both in the form of relief which would effect the outcome of this litigation, as well as financial penalties of up to $2,500. (Docs. 103 and 104)
In fact, the initial response of defense counsel to this sanctions motion utterly belies her current claim that she was denied notice of the allegations against her. Prior to the June 10, 2011, hearing conducted in this case, defense counsel filed several detailed responses to this motion, responses which amply illustrated that counsel was entirely aware of the legal and factual grounds for these proceedings. (Docs. 107, 108, and 111)*fn2
The Court then provided defense counsel a further opportunity to be heard on June 10, 2011, at a hearing conducted by the Court. (Doc. 116) Following this hearing, the Court allowed additional opportunities for factual submissions, (Doc. 117), and briefing of this matter by the parties. (Doc.136.) Indeed, when defense counsel requested further time to reply to aspects of this sanctions petition, (Doc. 182), we granted this request, providing defense counsel additional time to frame a response to this sanctions motions. (Doc. 183) It is only after months of litigation, and after affording defense counsel numerous opportunities to be heard on this matter, that we first learned that counsel believed that she had been denied due process.
We reject this claim. It is clear beyond any reasonable dispute that defense counsel had ample notice of this matter, and was afforded multiple opportunities to be heard. Defense counsel was also on notice from prior sanctions litigation, and from the plaintiff's's motion for sanctions, that financial sanctions of as much as $2,500 might be sought by the plaintiff in this case. Therefore, the due process requirements of notice and an opportunity to be heard were fully satisfied here, the due process claims belatedly advanced by counsel are meritless, and they will be denied.*fn3
Having addressed this threshold factual assertion, and having previously found sanctionable misconduct by defense counsel which warrants a financial penalty in the form of attorney's fees, see O'Donnell v. Department of Corrections, No. 09-1173, 2011 WL 3163230 (M.D. Pa. July 26, 2011), we now turn to the assessment of these fees.
1. Principles Governing Assessment of Fees ...