Mantell v. Chassman, 2013 U.S. App. LEXIS 3717 (2d Cir. Feb. 20, 2013):

A. The October 2011 Sanction

Rule 37(a)(5) provides that, if (1) a district court grants a Rule 37(a) motion to compel discovery or disclosure, or (2) disclosure or the requested discovery is provided after the motion was filed, the "court must, after giving an opportunity to be heard, require the . . . [opposing] attorney . . . to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(5)(A). However, a court must not order payment if: (1) "the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action"; (2) "the opposing party's nondisclosure, response, or objection was substantially justified"; or (3) "other circumstances make an award of expenses unjust." Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii).

Mantell is mistaken that a sanction under Rule 37(a)(5) requires a violation of a court order. Rather, a court must order a sanction under Rule 37(a)(5) if it is forced to grant a motion to compel discovery or the requested discovery is provided after such a motion was filed. See Fed. R. Civ. P. 37(a)(5). Here, following the November 8, 2010 letter of plaintiff's attorney Stanley K. Shapiro ("Shapiro") requesting the court to compel discovery pursuant to Rule 37, both situations occurred: (1) the magistrate judge ordered disclosure of documents 8-29 and 41-45; and (2) Mantell disclosed documents 31-35 and 37-40 did not exist. We also note that Mantell's assertion that his clients did not contact him until December 2011 does not excuse his failure to inform Shapiro or the magistrate judge in a timely fashion that he required additional time to respond to Shapiro's discovery requests. By waiting until January 2011 to alert Shapiro and the magistrate judge that he was unable to confer with his clients during the relevant period, Mantell forced needless motion practice, wasting time and resources.

However, Mantell is correct that the district court improperly calculated attorneys' fees by including the attorneys' fees related to Shapiro's June 2011 reply to Mantell's objections to the declaration of fees and costs (a total of 5.5 hours, or $2,475). As Mantell points out, the magistrate judge invited him to file objections to Shapiro's January 2011 declaration of attorney's fees and costs, but then sanctioned Mantell for doing so by awarding fees associated with Shapiro's June 2011 reply. Moreover, the sanctions the district court imposed against Mantell were for the reasonable attorneys' fees and costs associated with the November 8, 2010, November 22, 2010, December 16, 2010, and January 13, 2011 letters. Thus, because the sanction award did not cover future filings, the court erred by including fees for Shapiro's June 2011 reply. ***

B. The March 2012 Sanction

In its December 20, 2011 Memorandum and Order, the district court imposed sanctions on Mantell pursuant to Rule 37(d) and § 1927 for (1) scheduling his clients' depositions in bad faith, and (2) filing a frivolous motion for reconsideration in July 2011. Since Rule 37(d) provides sanctions for a "Party's Failure to Attend Its Own Deposition," it can be safely assumed that when the district court sanctioned Mantell for the frivolous motion for reconsideration, it did so pursuant to § 1927 and not Rule 37(d). The district court affirmed the imposition of sanctions against Mantell when it denied his motion for reconsideration of the December 2011 Order in March 2012.

First, insofar as the district court imposed sanctions under § 1927, Mantell lacked proper notice that he was facing such sanctions, as: (1) Shapiro, in his November 2011 motion, sought sanctions pursuant to Rule 37; and (2) the district court did not warn Mantell that it was considering imposing § 1927 sanctions prior to imposing sanctions in its December 2011 order. Although the court had previously sanctioned Mantell under § 1927 (the October 2011 sanction), he was not on notice that he was facing such sanctions based on Shapiro's November 2011 motion. See Schlaifer Nance & Co., 194 F.3d at 334.

Nor was Mantell on notice that he faced sanctions for scheduling his clients' depositions. Although Shapiro moved for sanctions against Mantell's clients for failing to attend their depositions, he did not move for sanctions against Mantell for scheduling those depositions. Although the district court, in its March 2012 reconsideration order, stated that Shapiro had requested sanctions against Mantell with respect to "misrepresentations and omissions regarding the scheduling [of] plaintiffs' depositions," the court cited a section of Shapiro's November 2011 motion related to his request for sanctions against the plaintiffs, not Mantell.