UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-61557-DIMITROULEAS/STRAUSS 

ANTHONY JEROME WALKER, et al.,

Plaintiffs,

v.

GRAMPA’s REAL ESTATE INC.,

d/b/a Grampa’s Bakery & Restaurant, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

THIS CAUSE is before me upon Defendants’ Motion for Sanctions and Incorporated 

Memorandum of Law (“Motion for Sanctions”). (DE 38). The Motion in this case was denied in 

part and referred in part by the Honorable William P. Dimitrouleas, United States District Judge, 

pursuant to 28 U.S.C. § 636 and the Magistrate Rules of the Local Rules of the Southern District 

of Florida (“Referral Order”). (DE 41). Specifically, the Referral Order referred to me the issue 

of attorney’s fees, which Defendants seek as a result of Plaintiff Macula and Plaintiff Williams 

failing to appear at mediation, where Plaintiffs’ counsel and the other eleven Plaintiffs appeared. 

Id. Having reviewed the Motion for Sanctions, the supplement to the motion (“Supplement”) 

(DE 49), the Response (DE 51) and the record, and being otherwise duly advised, I respectfully 

RECOMMEND that the Motion for Sanctions be DENIED as detailed below.

Because the Motion for Sanctions seeks an unspecified amount of attorney’s fees pursuant 

to Fed. R. Civ. P. 16(f) against Plaintiffs Macula and Williams only – not against Plaintiffs’ counsel

– I ordered Defendants to supplement their motion if the parties’ conferral efforts pertaining to 

fees sought by the motion were unsuccessful. (DE 43 at 3). On August 2, 2021, Defendants filed 

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their Supplement. (DE 49). The Supplement seeks a total of 1.2 hours at $300 per hour, or a total 

of $360.00, only for the time spent preparing the Motion for Sanctions. Id. 

Federal Rule of Civil Procedure 16(f) allows for sanctions if a party “fails to obey a 

scheduling or other pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). In making their Motion for 

Sanctions, Defendants state that “Rule 16(f)(2) provides, ‘[i]nstead 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.’” (DE 38 at ¶12) (quoting from Granados v. Palm Coast Bldg. Maint., Inc., No. 20-CV81917-RAR, 2021 WL 1617689, at *2 (S.D. Fla. Jan. 26, 2021)). As Defendants note, however, 

“‘[t]he sanctions contained in Rule 16(f) were designed to punish lawyers and parties for conduct 

which unreasonably delays or otherwise interferes with the expeditious management of trial 

preparation.’” Id. at ¶11 (quoting Granados, 2021 WL 1617689 at *2 (citing Goforth v. Owens, 

766 F.2d 1533, 1535 (11th Cir. 1985)). 

Here, it does not appear that the nonappearance of Plaintiffs Williams and Macula at 

mediation caused unreasonable delay or interference with trial preparation. Indeed, Defendants 

state that “[d]ue to the presence of every other Plaintiff in this matter at mediation, Defendants do 

not [even] believe an award of fees and costs against Plaintiffs’ counsel is warranted.” (DE 38 at 

¶15). Thus, Defendants acknowledge that eleven of the thirteen Plaintiffs appeared as scheduled 

for mediation and seek sanctions only against two of the thirteen Plaintiffs individually. 

Additionally, Plaintiffs’ counsel avers that the mediation ended quickly in an impasse because the 

parties were far apart in their positions regarding settlement. (DE 51 at ¶4). Moreover, Defendants 

fail to identify or seek any fees or costs that were unnecessarily incurred or avoidable due to 

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Plaintiffs Williams and Macula not attending the mediation. Instead, Defendants seek fees for 

preparation of their motion for sanctions. (DE 49 at 2). Thus, I conclude that Plaintiff Williams’ 

and Plaintiff Macula’s nonappearance caused no interference or delay, and monetary sanctions 

under Rule 16(f) are not supported in this instance. 

Nevertheless, Plaintiffs Williams and Macula appear unengaged in this litigation and 

should be held accountable for such conduct. Plaintiffs’ counsel notes that he has been unable to 

reach Plaintiffs Williams and Macula, and he seeks to withdraw as counsel as a result. (DE 51 at 

¶12; DE 50). While the District Court declined to dismiss the claims of Plaintiffs Macula and 

Williams for failure to appear at mediation (DE 41), their counsel’s averment that he has been 

unable to contact them provides stronger indication that they are not pursuing their claims. Indeed, 

while Plaintiffs’ counsel filed a response to the instant Motion for Sanctions on their behalf, 

Plaintiffs Macula and Williams offer no explanation for their failure to attend mediation, and their 

attorney seeks to withdraw as counsel because he has “lost contact” with them. (DE 50). “A 

district court may sua sponte dismiss a case under the authority of either Rule 41(b) or the court's 

inherent power to manage its docket” if a plaintiff fails to comply with a court order or fails to 

prosecute the case. Johnson v. DuBose, 806 F. App'x 927, 928 (11th Cir. 2020) (citing Betty K 

Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). Therefore, I recommend 

that the District Court issue an Order to Show Cause directing Plaintiffs Macula and Williams to 

show cause why their claims should not be dismissed for failure to prosecute. 

In sum, while I find that sanctions under Rule 16(f) are not warranted, I also find that 

Plaintiffs Macula and Williams should be held accountable for their lack of engagement with this 

case. Although their failure to attend mediation standing alone may not warrant dismissal, 

compounding that failure by failing to provide a reasonable (or, indeed, any) explanation for that 

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failure and not communicating with their counsel suggests a need for additional scrutiny. 

Accordingly, I respectfully RECOMMEND as follows:

1. That the Motion for Sanctions (DE 38) be DENIED; and

2. That Plaintiffs Macula and Williams be ORDERED to SHOW CAUSE within a 

reasonable period of time why their claims should not be dismissed for failure to 

prosecute.

The parties will have fourteen (14) days from the date of being served with a copy of this 

Report and Recommendation within which to file written objections, if any, with the Honorable 

William P. Dimitrouleas, United States District Judge. Failure to file objections timely shall bar the 

parties from a de novo determination by the District Judge of an issue covered in the Report and 

shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained

in this Report except upon grounds of plain error if necessary in the interest of justice. See 28 

U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 

794 (1989); 11th Cir. R. 3-1 (2016).

DONE AND SUBMITTED in Fort Lauderdale, Florida, this 10th day of August 2021.

Copies furnished via CM/ECF to:

Hon. William P. Dimitrouleas

Counsel of record 

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