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Kothe v. Smith - 771 F.2d 667 (2d Cir. 1985)


Fed. R. Civ. P. 16 was not designed as a means for clubbing the parties into an involuntary compromise. Although subsection (c) (7) of Rule 16, added in the 1983 amendments of the Rule, was designed to encourage pretrial settlement discussions, it was not its purpose to impose settlement negotiations on unwilling litigants.


Patricia Kothe brought this suit for medical malpractice against four defendants, Dr. Smith, Dr. Andrew Kerr, Dr. Kerr's professional corporation, and Doctors Hospital, seeking $2 million in damages. She discontinued her action against the hospital four months prior to trial. She discontinued against Dr. Kerr and his corporation on the opening day of trial. Three weeks prior thereto, Judge Sweet held a pretrial conference, during which he directed counsel for the parties to conduct settlement negotiations. Although it is not clear from the record, it appears that Judge Sweet recommended that the case be settled for between $20,000 and $30,000. He also warned the parties that, if they settled for a comparable figure after trial had begun, he would impose sanctions against the dilatory party. On the second day of trial, Smith settled, and Judge Sweet imposed a sanction on Smith, ordering him to pay attorneys' fees to Kothe.


Can a judge impose a sanction for failure to settle before the first day of trial?




The court determined that while Fed. Rule Civ. P. 16(c)(7) encouraged settlement of cases, and Rule 16(f) gave the judge the power to impose sanctions, Judge Sweet abused the sanction power by imposing a sanction on Smith only for failure to settle before the first day of trial. The court therefore reversed the judgment of the trial court and vacated the order.

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