A money judgment for plaintiffs that a judge refused to execute because of misconduct by their attorney has been revived by the U.S. Court of Appeals for the Second Circuit.

A three-judge panel said that plaintiffs, who would have received $266,590 in back pay and damages in a sexual harassment case, should not be punished as a sanction for their attorney’s conduct in Mitchell v. Lyons, 10-5100-cv.

Judges Ralph Winter (See Profile), Reena Raggi (See Profile) and Denny Chin (See Profile) said Eastern District Judge Brian Cogan (See Profile) had a number of alternatives in sanctioning plaintiffs’ attorney Gary Rawlins for failure to follow the judge’s orders, and they vacated Cogan’s dismissal of the plaintiffs’ execution of judgment motion.

Plaintiffs Keesha Mitchell, Theresa Campbell, Seannette Campbell and Tanisha Selby obtained default judgments against Lyons Professional Services and one of its supervisors in their case alleging sexual harassment and employment discrimination.

At a damages inquest where both defendants failed to appear, Cogan awarded $266,590 for back pay, damages for emotional harm and punitive damages. In May 2010, plaintiffs filed an execution motion against Lyons, its alleged successor in interest, Garrison Professional Services Inc., and Lyons’s owner, Christopher Lyons.

Writing for the circuit, Winter said that Rawlins three times sought and obtained adjournments of the initial status conference and twice failed to follow orders to provide notice of the conference to defendants and file proof of notice with the court within one week.

"Rawlins continually failed both to comply with court orders and to communicate in advance with the court in an effort to reduce the disruptive effects of his noncompliance," Winter said.

By September 2010, Cogan threatened to deny the execution motion "based on counsel’s failure to appear, particularly in light of the history of prior miscues."

The judge set a Nov. 8, 2010, hearing date and Rawlins appeared, but without certain materials he had been asked by the court to prepare. Cogan sanctioned him $500 and reset the hearing for Nov. 15.

But Rawlins was late to that hearing, and Cogan had had enough. The judge dismissed the execution motion and later denied a motion for reconsideration by the plaintiffs after finding "not compelling" Rawlins’ claim that mistaken scheduling notes were the source of his troubles.

The plaintiffs appealed to the Second Circuit, arguing they should not be punished for Rawlins’ actions. The circuit vacated the sanctions and remanded the case.

Winter said that the sanction of dismissal with prejudice must be supported by clear evidence of misconduct and specific factual findings.

"Further, mindful that the sanction of dismissal with prejudice has harsh consequences for clients, who may be blameless," he said, Second Circuit case law holds that "it should be used only in ‘extreme situations.’"

Winter said Cogan afforded the proper procedural safeguards in the matter, repeatedly warning Rawlins about the consequences of failing to abide by a detailed scheduling order and giving the plaintiffs a full hearing on the motion to reconsider.

Four of the five factor "fault standards" outlined in Lucas v. Miles, 84 F.3d 532 (2d Cir. 1996), were met here and weigh in favor of dismissal, Winter said. Noting there was noncompliance for a full 18 months, plaintiffs were given notice that future misconduct would result in dismissal, further delays would "continue to waste the time and resources of adversary parties" and "the court has a clear need to manage its docket, which Rawlins seriously disrupted."

Winter said the court was only taking issue with the fifth factor, "whether alternative sanctions not involving serious harm to counsel’s clients were adequately considered."

"A wide panoply of sanctions was, and is, at the district court’s disposal," Winter said, including monetary sanctions on counsel, the assessment of costs and attorney fees and "mandated disclosure by counsel of his sanctionable conduct to the bar, to future clients, and to courts in which Rawlins may appear."

Mitchell Perry of the Rawlins Law Firm represented the plaintiffs.

Brooke Anthony of the Law Offices of Raymond A. Giusto in West Bay Shore represented the defendants.