Perez v. City of New York

Background

Defendants Yvonne Edwards and Geoffrey Wyrick moved to dismiss Noheme Perez’s action for failure to prosecute under Federal Rule of Civil Procedure 41(b). They also sought dismissal and sanctions under Rule 16(f) based on failures to comply with scheduling and pretrial orders.

An earlier opinion had granted the defendants’ summary-judgment motion in part and denied it in part. The only surviving claim was a malicious-prosecution claim based on three charges: resisting arrest, driving while intoxicated, and driving while ability impaired.

The court had set February 6, 2023, as the deadline for a joint pretrial order for a trial scheduled to begin on February 27. At Perez’s request, the court extended that deadline to February 13 so the parties could explore settlement. Perez did not submit the joint pretrial order, did not communicate with the defendants after requesting the extension, and did not send a settlement demand.

The defendants moved to dismiss on February 13. The court ordered Perez to explain why the case should not be dismissed or why she should not be barred from presenting evidence at trial. Perez responded that her lawyers had lost support staff, that supervising attorneys had been occupied with other trials, and that counsel faced other stated difficulties. The court allowed additional opportunities to submit the required materials.

Perez’s counsel submitted proposed jury instructions, a verdict form, and voir dire materials, but did not provide a pretrial order, witness list, or exhibit list. The court then warned that a proper joint pretrial order had to be filed by February 18 or Perez would be barred from presenting evidence at trial. Perez did not comply. She also did not appear at the February 24 final pretrial conference.

Court’s analysis

Rule 16(f) allows a court to issue appropriate orders when a party or attorney fails to appear at a pretrial conference, is substantially unprepared or does not participate in good faith, or fails to obey a scheduling or pretrial order. The available sanctions can include barring evidence and dismissing an action in whole or in part.

The court applied factors used for dismissal as a sanction: whether the noncompliance was willful or attributable to the party, whether lesser sanctions would work, how long the noncompliance lasted, and whether the party had been warned about the consequences. The court found that Perez had received repeated warnings and at least three opportunities to comply. It found that the failures were attributable to Perez’s counsel and were willful, that lesser sanctions would not be effective, and that counsel had not provided a legitimate explanation for the repeated violations.

The court also found that counsel’s failures prejudiced the defendants and inconvenienced the court. It rejected counsel’s explanation that other trials prevented preparation of the pretrial materials, noting that the relevant scheduling conflicts did not explain the failure to communicate with the defendants or attend the final pretrial conference. The court stated that a party is generally bound by her lawyers’ actions or failures to act.

Ruling

Judge Lewis J. Liman dismissed Perez’s remaining malicious-prosecution claim under Rule 16(f). The conclusion states that “Plaintiffs’ motions to dismiss are GRANTED pursuant to Rule 16(f),” although the opinion’s discussion identifies the dismissal motions as having been filed by the defendants.

The court imposed sanctions on Perez’s attorneys Ataur Raquib, Michael Pinkard, and Samuel DePaola. The sanctions include conditional awards of the defendants’ reasonable attorneys’ fees and costs for specified dismissal, sanctions, pretrial-order, and conference-related work; the costs of the same-day final-pretrial-conference transcript; and Defendant Wyrick’s out-of-pocket travel expenses for attending the scheduled trial. The fee and cost awards were conditioned on the defendants’ submission of an accounting.

The court also ordered each of the three attorneys to complete four hours of approved continuing legal education on federal practice and procedure within six months, in addition to any other bar requirements, and to submit proof of completion by August 27, 2023. The order warned that noncompliance could lead to additional sanctions or contempt proceedings.