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Avoid Hubris and Disregard of Procedural Rules

Posted by James Juo | Aug 15, 2022 | 0 Comments

Rule 16 of the Federal Rules of Civil Procedure provides that district courts are to achieve the just, speedy, and inexpensive determination of every action and proceeding.

A district court may impose sanctions should a party or its counsel violate these standards under Rule 16. See Fed. R. Civ. P. 16(f) (“On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney … fails to obey a scheduling or other pretrial order.”).

“Monetary sanctions for noncompliance with Rule 16 pretrial orders are required and appropriate absent a showing that the violation was ‘substantially justified' or the award of expenses is ‘unjust' under the circumstances of the case.” Tracinda Corp. v. DaimlerChrysler AG, 502 F.3d 212, 241 (3d Cir. 2007) (citation omitted); see Fed. R. Civ. P. 16(f)(2) (“Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses—including attorney's fees—incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust.”).

“Substantial justification” exists where there is a “genuine dispute concerning compliance.” Rorrer v. Cleveland Steel Container, 564 F. App'x 642, 644 (3d Cir. 2014). “Whether a sanction is ‘unjust' requires a ‘consideration of the degree of the sanction in light of the severity of the transgression….'” Id.; see also Tracinda, 502 F.3d at 241 (defining “unjust to include “unfair,” “unreasonable,” “inequitable,” or “harsh”).

Sanctions for Unsolicited Submission

In Medical Technology Associates II Inc. v. Rausch, No. 2:21-cv-01095 (E.D. Pa. Aug. 4, 2022), Plaintiff's counsel was directed to show cause why sanctions should not be imposed for having filed an unsolicited 61-page “Submission” containing evidentiary materials, after advising the court that Plaintiff did not intend to submit any additional testimony on a pending motion to compel arbitration.

The court concluded that the “strategy” of counsel was “to get facts stated in exhibits into the record without calling those applicable individuals as witnesses” whose testimony would be subject to cross examination.

A motion for leave to file additional evidentiary documents could have been filed, but wasn't. Plaintiff's counsel also could have moved nunc pro tunc for the court to allow Plaintiff to present such fact testimony, but this was not done either.

No justification is offered for [counsel's] disregard for the procedural responsibilities Plaintiff owes to Defendants, and the Court. … The Court is not aware of any precedent or rule that permits a party's counsel to bypass federal procedural requirements in the name of “zealous advocacy.”


These events show [counsel's] hubris and disregard of procedural rules, particularly in light of the Court's Order offering Plaintiff an opportunity to present fact testimony. Therefore, for all these reasons, the Court finds that sanctions are appropriate under Rule 16(f).

The court ordered counsel to attend six (6) hours of continuing legal education (“CLE”) on the subject of federal practice and procedure; and to “personally pay” the reasonable expenses and attorney's fees incurred by Defendants due to the improper “Submission.” But counsel's conduct had not risen to a level to warrant revocation of his pro hac vice admission.

The attorneys at Thomas P. Howard, LLC litigate cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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