IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOHN DOE 1, as parent and natural guardian of

PLAINTIFF C, his minor child; JOHN DOE 2, as

parent and natural guardian of PLAINTIFF D, his

minor child; JANE DOE 1 as parent and natural

guardian of PLAINTIFF B and PLAINTIFF M, her

minor children; JANE DOE 2, as parent and natural

guardian of PLAINTIFF J, her minor child; JANE

DOE 3, as parent and natural guardian of

PLAINTIFF S, her minor child; and PLAINTIFF L,

Plaintiffs,

vs

JOSEPH R. FRANCIS; MRA HOLDING LLC, a

California limited liability company; MANTRA

FILMS, INC., an Oklahoma corporation (d/b/a “Girls

Gone Wild”); AERO FALCONS, LLC, a Delaware

limited liability company; MARK D. SCHMITZ; and

RYAN DAVID SIMKIN,

Defendants.

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Case No.: 5:03cv260-RS-WCS

SUPPLEMENTAL MEMORANDUM OF LAW REGARDING SANCTIONS

UNDER RULE 16, FEDERAL RULES OF CIVIL PROCEDURE

Under Rule 26(f), Federal Rules of Civil Procedure, parties to federal litigation must

confer and among other things, develop a proposed discovery plan and submit such plan to the

court. On October 16, 2006, a “Report of Parties Planning Meeting” (the “Report”) was filed

in the instant case. Paragraph 1 of the Report states that the parties’ meeting was held on

September 25, 2006.

Rule 16(b), Federal Rules of Civil Procedure provides that “the district judge . . . shall,

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after receiving the report from the parties under Rule 26(f) . . . enter a scheduling order . . . .”

On October 19, 2006, this Court entered an order titled “Scheduling and Mediation Order” and

under paragraph 8 ordered the parties to participate in a mediation conference and required that

all parties attend such conference.

Rule 16 also permits a court to enter an award of sanctions in certain situations. These

situations include “[i]f a party or party’s attorney fails to obey a scheduling or pretrial order, or

if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party

or party’s attorney is substantially unprepared to participate in the conference, or if a party or

party’s attorney fails to participate in good faith . . . .” Fed. R. Civ. P. 16(f) (emphasis added).

Case law has applied the requirement to participate in good faith at pretrial conferences to

mediation conferences. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 595-97 (8 Cir. 2001) th

(affirming award of sanctions under Rule 16(f) for party’s failure to provide court-ordered

memorandum to mediator, sending corporate representative to mediation with settlement

authority limited to $500, and that any offer over $500 could only be considered by individual

not present at mediation); Francis v. Women’s Obstetrics and Gynecology Group, P.C., 144

F.R.D. 646, 647-48 (W.D.N.Y. 1992) (issuing order awarding sanctions under Rule 16(f) against

party because the failure to provide mediator with a timely pre-mediation statement and the

insurance carrier not being in a position to negotiate indicate a failure to participate in good faith

in the mediation); Ferrero v. Henderson, 2003 WL 21796381, *5-6 (S.D. Ohio 2003) (granting

motion for sanctions under Rule 16(f) for, among other things, failure of party to authorize even

a “nuisance offer” at mediation).

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The Ferrero case is particularly applicable to the circumstances faced in the instant case.

There, the defendant’s counsel stated at mediation that the defendant would make no settlement

offer because “he did not want Plaintiff to receive any monetary award.” Ferrero, 2003 WL

21796381 at *5. The district court granted plaintiff’s motion forsanctions holding that “[b]ased

on Plaintiff’s uncontested representation of Defendant’s conduct, the Court agrees that

Defendant failed to participate in the mediation session in good faith and that this conduct

warrants sanctions under Rule 16(f).” Id. at *6. 

The sanctions available under Rule 16(f) include those provided in Rule 37(b)(2)(B),

(C), (D). Under those provisions, contempt is an acceptable sanction. Fed. R. Civ. P.

37(b)(2)(D). In addition to those sanctions permissible under Rule 37, a court may order a party

to pay “the reasonable expenses incurred because of any noncompliance with [Rule 16].” Fed.

R. Civ. P. 16(f). 

Due to Francis’ failure to participate in the mediation conference in good faith, this Court

has the authority under Rule 16, Federal Rules of Civil Procedure, to sanction Francis and

should enter an order consistent with such authority.

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Respectfully submitted, 

/s/ Larry Selander

Larry Selander

Daniel Small

Thomas G. Dent

Rachael G. Pontikes

Duane Morris LLP

227 West Monroe Street, Suite 3400

Chicago, IL 60606

(312) 499-6700

Fax: (312) 499-6701 

and

D. Ross McCloy, Jr.

Robert A. Fleming, III

Harrison, Sale, McCloy, Thompson

 & Duncan, Chtd.

Florida Bar No. 0262943

Post Office Drawer 1579

Panama City, FL 32402

(850) 769-3434

Fax: (850) 769-6121

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 30, 2007, copies of the foregoing were served via

hand delivery and/or electronic mail:

Michael P. Dickey

Barron, Redding, Hughes, Fite, Sanborn, Kiehn & Dickey, P.A.

P.O. Box 2467

Panama City, Florida 32402

Michael Burke, Esq.

1601 Cloverfield Avenue

Suite 420 South

Santa Monica, CA 90404

and by U.S. Mail upon:

Mark Schmitz

2509 Sherborne Blvd.

Fort Wayne, IN 46805

/s/ Larry Selander

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