Nesco Design Group, Inc. v. Grace, Civ. A. No. 82-1000.

• Decision Date: 28 November 1983
• Docket Number: Civ. A. No. 82-1000.
• Parties: NESCO DESIGN GROUP, INC., Plaintiff, v. Regis J. GRACE and Grace Enterprises, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

577 F. Supp. 414

NESCO DESIGN GROUP, INC., Plaintiff, v. Regis J. GRACE and Grace Enterprises, Inc., Defendants.

Civ. A. No. 82-1000.

United States District Court, W.D. Pennsylvania.

November 28, 1983.

Jon Hogue, Titus, Marcus & Shapira, Pittsburgh, Pa., for plaintiff.

John E. Wall, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for defendants.

MEMORANDUM OPINION

TEITELBAUM, Chief Judge.

On October 12, 1983 at the pre-trial conference on the above-captioned case, the Court told the attorneys that notice of settlement must be given to the Court at least two working days prior to the time set for jury selection, and that if such notice were not given, counsel would each be assessed one-half of one day's jury cost. On October 24, 1983, the date set for trial, a panel of fifteen jurors was present from which a jury to try the case would be selected. One hour before the time jury selection was to commence, the Court was notified the case had settled. Jury expenses totalling $590.22 were incurred. Thereafter, a hearing was held to give counsel an opportunity to show there was good cause for failure to promptly notify the Court of settlement. Although counsel had engaged in bona fide settlement negotiations, this alone does not constitute cause to avoid the assessment of costs. Having determined that counsel failed to show cause, the above-mentioned jury costs will be assessed equally against each attorney.

The purpose of prompt notice of settlement is to allow the Court to schedule other matters, and to prevent both the unnecessary inconvenience to citizens appearing for jury duty and the unnecessary costs incurred by the Government, and ultimately the nation's taxpayers. The Court is concerned with the traditional practice of settling cases "on the courthouse steps." Frequently the parties may be willing to settle, but the attorneys do not mutually discuss settlement until they meet to try the case.

Recognizing the need to avoid unnecessary jury costs, other districts¹ have enacted local rules similar to the policy described herein. One such local rule was approved by the Tenth Circuit in Martinez v. Thrifty Drug and Discount Company, 593 F.2d 992 (10th Cir.1979).

The Court does not believe that this policy is prohibited by the holding in Gamble v. Pope & Talbot, Inc., 307 F.2d 729 (3rd Cir.) (en banc), cert. denied sub nom. United States District Court v. Mahoney, 371 U.S. 888, 83 S.Ct. 187, 9 L.Ed.2d 123 (1962). In Gamble, the United States Court of Appeals for the Third Circuit held a district judge lacked authority to impose a fine under a local rule against counsel absent a preliminary finding of contempt. In that case, counsel failed to timely submit a pretrial memorandum in compliance with a local rule, and the offending attorney was fined one hundred dollars.

Gamble can be distinguished on grounds of both procedure and underlying policy. As to the former, the attorney in Gamble had no prior actual notice that he would be personally fined for failure to meet the pre-trial deadline. The fine was imposed without the attorney being given an opportunity for a hearing. This procedure was held to be a violation of the Due Process clause of the Fifth Amendment. In the instant case, counsel were given advance notice of the policy, and were afforded an opportunity for a hearing before costs were imposed.

Furthermore, the amount of the fine imposed by the district judge in Gamble was arbitrarily set. Under the instant policy, the costs imposed...