United States District Court, M.D. Florida, Tampa Division
ARNOLD SANSONE UNITED STATES MAGISTRATE JUDGE
denial of Miami-Dade County's late request to have its
designated representative appear telephonically at a
court-ordered mediation, Nadia Rodriguez seeks an order
directing the parties to return to mediation and for
sanctions against Miami-Dade for its failure to comply with
the court's mediation orders. (Doc. 91). Miami-Dade
opposes the motion (Doc. 94), and submits its reasons why
sanctions are not warranted (Doc. 89).
April 18, 2018, the court ordered the parties to mediate by
May 18, 2018. (Doc. 80). The parties scheduled the mediation
for May 16, 2018, at 9:30 a.m. (Doc. 82). The afternoon
before the mediation, Miami-Dade requested permission for its
designated representative to appear telephonically because it
was more than 270 miles from Miami to Tampa and the
designated representative must remain in Miami “due to
an ongoing audit process and work issues.” (Doc. 83).
morning of the scheduled mediation, the court denied
Miami-Dade's motion for its designated representative to
appear telephonically. (Doc. 87). The order further directed,
if Miami-Dade's designated representative did not attend
the mediation in person, Miami-Dade must show cause why
sanctions should not be imposed. (Id.).
Miami-Dade's designated representative did not appear at
the mediation so Miami-Dade responded to the order to show
cause. (Doc. 89).
Ms. Rodriguez filed the instant motion requesting the parties
return to mediation and for sanctions against Miami-Dade,
including the payment of the mediator's fees,
attorney's fees, and the cost of further mediation. (Doc.
91). In response, Miami-Dade consents to payment of Ms.
Rodriguez's portion of the mediator's fees but
opposes the remaining requests. (Doc. 94). Taken together,
the gist of Miami-Dade's responses to the order to show
cause and Ms. Rodriguez's motion are: (1)
Miami-Dade's counsel selected a date without checking the
availability of her client (Docs. 89, p. 1; 93, pp. 1-2); (2)
counsel learned that the designated representative was
unavailable too late to cancel the mediation without a $1,
500.00 cancellation fee (Doc. 89, p. 3-4); (3) only
Miami-Dade's Board of County Commissioners has
“full authority to settle” (Id. at pp.
2-3); (4) the mediation would not result in a settlement no
matter who attended (Id. at p. 3); and (5) there was
no prejudice to Ms. Rodriguez because she still received a
benefit from the mediator's efforts (Doc. 94, p. 3).
April 2018 order requiring the parties to mediate a second
time expressly required the parties' compliance with the
June 2016 mediation order. (Doc. 80). The June 2016 mediation
Absent leave of court, which is granted only in an
extraordinary circumstance, each attorney acting as lead
counsel and each party (or the designated representative with
full authority to settle) must attend the mediation in
(Doc. 36, p. 3).
motion or on its own, the court may sanction a party or its
attorney for failure to obey a scheduling order. Fed.R.Civ.P.
16(f)(1)(C). The court “must order the party, its
attorney, or both to pay the reasonable expenses-including
attorney's fees-incurred because of any noncompliance ...
unless the noncompliance was substantially justified or other
circumstances make an award of expenses unjust.”
Fed.R.Civ.P. 16(f)(2). Local Rule 9.05(c) requires all
parties to be present at a court-ordered mediation conference
unless expressly excused by the presiding judge in writing,
and the failure to attend such a conference may subject a
party to sanctions.
designated representative did not appear at the May 16th
mediation due to the distance between Miami and Tampa and
“an ongoing audit process and work issues that required
her presence.” (Doc. 89, p. 1). This explanation falls
short of establishing that the failure to attend the
mediation was substantially justified. The court's
mediation order clearly required personal attendance of
counsel and a designated representative with full authority
to settle. In addition, the parties mutually agreed upon the
mediation date and filed the notice of mediation twenty days
prior to the scheduled mediation date. (Doc. 82). Yet, it was
not until the day before the mediation that Miami-Dade filed
its opposed motion to appear telephonically. (Doc. 83).
Presumably assuming that its filed motion was sufficient but
in direct violation of the court's prior orders,
Miami-Dade's designated representative did not attend the
May 16th mediation. (Docs. 36, 80).
Miami-Dade's excuses establish that the failure of their
designated representative to appear at the mediation was
substantially justified, or that other circumstances make an
award of expenses unjust. See Scott v. K.W. Max
Investments, Inc., No. 6:05-cv-683-ORL-18, 2007 WL
80851, *2 (M.D. Fla. Jan. 8, 2007) (granting sanctions for
failure to appear at mediation in violation of case
management and scheduling order). Thus, the court “must
order the party, its attorney, or both to pay the reasonable
expenses-including attorney's fees-incurred because of
any noncompliance.” Fed.R.Civ.P. 16(f)(2).
Rodriguez's counsel, James Roscoe Tanner, seeks
attorney's fees in the amount of $1, 800.00 ($450.00/hr
for four hours) incurred in relation to the May 16th
mediation. According to the website for The Florida Bar, Mr.
Tanner has been admitted to practice law for over thirty
years and has a broad range of litigation experience. Other
than saying the fees are “unjustified” (Doc. 94,
p. 3), Miami-Dade does not offer any opposition to Mr.