Archer v. Methot, et al.

2009 DNH 104

• Court: District Court, D. New Hampshire
• Decided: July 9, 2009
• Docket: 09-CV-85-JD
• Status: Published

Opinion

Archer v. Methot, et a l . 09-CV-85-JD 07/09/09 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Darcv Archer

v. Civil No. 09-CV-85-JD Opinion No. 2009 DNH 104

Sue Methot. Gary Methot. and Snowflake Inn

O R D E R

Darcy Archer brought claims of copyright and trademark

infringement, breach of contract, and unfair trade practices

against Sue and Gary Methot and the Snowflake Inn, arising out of

a failed business arrangement for use of photographs of the Inn.

A pretrial conference was scheduled for June 18, 2009. Although

the parties agreed to the terms of a discovery order, which was

filed with the court, they disagreed about whether a pretrial

conference was necessary: Archer wanted a pretrial conference

before the scheduling order was adopted, and the defendants did

not request a conference.

The pretrial conference was held, as scheduled, on June 18,

2009. Counsel for the defendants attended. Archer's counsel did

not attend the conference or contact opposing counsel or the

court to request a change or explain his absence. The defendants

have filed a motion pursuant to Federal Rule of Civil Procedure 16(f), requesting an award of the attorney's fees incurred for

the time spent attending the pretrial conference. Archer opposes

the motion.

Rule 16(f) provides for sanctions if, among other things, a

party or counsel "fails to appear at a scheduling or other

pretrial conference." In addition, if a party or counsel fails

to comply with the requirements of Rule 16, the court must order

the noncompliant party or counsel, or both, "to pay the

reasonable expenses--including attorney's fees--incurred because

of any non-compliance with this rule, unless the noncompliance

was substantially justified or other circumstances make an award

of expenses unjust." Fed. R. Civ. P. 16(f)(2).

Application ofsanctions under Rule 16(f) is subject to the

court's discretion. Velez v. Awning Windows. Inc.. 375 F.3d 35,

42 (1st Cir. 2004). The rule does not require a finding of bad

faith or intent. Tracinda Corp. v. DaimlerChrvsler AG. 502 F.3d

212, 242 (3d Cir. 2007). Instead, courts consider the nature and

consequences of the violation, and in particular, the impact of

the violation on the opposing party. Id. Although some courts

may not impose sanctions absent unreasonable delay or a pattern

of abuse, see United States v. Samanieqo. 345 F.3d 1280, 1284

(11th Cir. 2003), in other cases, negligence that results in

missing a pretrial conference has been grounds for imposing

2 monetary sanctions, see, e.g., Velaauez-Rivera v. Sea-Land Serv.,

Inc., 920 F.2d 1072, 1079 (1st Cir. 1990); Avers v. City of

Richmond. 895 F.2d 1267, 1270 (9th Cir. 1990).

In this case, the defendants' counsel, Donald L. Smith,

represents that he opposed a preliminary pretrial conference

because it was not necessary, given the parties' agreement to a

scheduling order, and because it would require his time which

would cost his clients additional fees. Smith provided an

affidavit that shows the defendants incurred $575 in fees for the

time he spent preparing for the conference and traveling to and

from the court to attend the conference. Smith also lists $125

in fees for the time he spent preparing the motion for sanctions.

Darcy's counsel, Charles G. Holoubek, acknowledges that

Smith, on behalf of the defendants, opposed having a pretrial

conference. He explains that he requested the conference,

despite the parties' agreement to a joint discovery plan, because

he hoped that a meeting with the judge at the conference would

"whittle down some of the points in contention, and perhaps thus

aid in negotiating a settlement." He represents that he

mistakenly entered the pretrial conference on his calendar for

June 19 instead of June 18. Relying on his calendar, Holoubek

took the day off and was out of his office on June 18. He did

3 not attend the conference or notify Smith or the court that he

would not attend.

Holoubek's negligence does not substantially justify his

absence, particularly in light of his insistence that a pretrial

conference be held. Under the circumstances presented here, it

is just to compensate the defendants for the reasonable costs

expended by their counsel in preparing for and traveling to

attend the pretrial conference and in preparing the motion for

sanctions.

Smith states in his affidavit that his hourly rate is $250.

He states that he spent .6 hours reviewing and analyzing the file

to prepare for the pretrial conference. He spent 1.7 hours

traveling to the court to attend the conference and in attending.

He also spent .5 hours preparing the motion for sanctions.

Attorney travel time is often, but not always, compensated

at a reduced rate. See In re Babcock & Wilcox Co.. 526 F.3d 824,

828-29 (5th Cir. 2008) (discussing cases); see also Barfield v.

N.Y. City Health & H o s p s . Corp.. 537 F.3d 132, 139 (2d Cir.

2008); Haarhuis v. Kunnan Enters.. Ltd.. 177 F.3d 1007, 1015-16

(D.C. Cir. 1999); Furtado v. Bishop. 635 F.2d 915, 922 (1st Cir.

1980); Astro-Med. Inc. v. Plant. 250 F.R.D. 28, 32 (D.R.I. 2008).

In this case, where there is no indication that Smith worked on

4 this case while traveling to and from the court, it would appear

to be fair to reduce the hourly fee for travel time to $200.

Smith does not break down the time spent traveling to and

from the court and the time spent at the court but instead offers

a total of 1.7 hours for the entire event. That time will be

compensated at $200 per hour for a total of $340. The other

amounts claimed in Smith's affidavit are accepted. Therefore,

the total fees incurred for the unnecessary pretrial conference

and preparing the motion are $615.

Conclusion

For the foregoing reasons, the defendants' motion for

sanctions (document no. 15) is granted to the extent that Charles

G. Holoubek is ordered to pay the defendants $615 for the

attorney's fees they incurred due to his failure to attend the

preliminary pretrial conference that Holoubek requested. Payment

shall be made on or before August 3, 2009.

SO ORDERED.

(X 3Vt Ciuxu,([i. Joseph A. DiClerico, Jr. United States District Judge

July 9, 2009

cc: Charles G. Holoubek, Esquire Donald L. Smith, Esquire