U.S. Court of Appeals for the Second Circuit.

The U.S. Court of Appeals for the Second Circuit reversed and remanded a suit dismissed by U.S. District Judge Sandra Feuerstein of the Eastern District of New York, finding the failure of the plaintiffs' attorney to show for a pretrial hearing wasn't sufficient grounds for the “extreme sanction of dismissal with prejudice,” according to the panel.

At issue in Smalls v. County of Suffolk, 14-cv-04889, was the failure of the plaintiffs' counsel, private attorney Noel Munier, to show up on time for an April 18, 2016, appearance before Feuerstein. According to court records, it was not the first time Munier failed to appear in the case. After missing a March 2015 hearing, the court ordered plaintiffs to show cause as to why the action should not then be dismissed for failure to prosecute.

Munier claimed he'd placed the conference on his calendar for the wrong month. A make-up conference was held, at which a discovery schedule was set and the April 2016 pretrial conference was planned.

The next time, Feuerstein wasn't so forgiving, dismissing the case with prejudice for failure to prosecute. Munier's excuse was that he had every intention of being at the conference in Suffolk County, but had two separate conferences in two separate cases—one in Queens and the other in Nassau County—that were also scheduled on April 18.

“It is beyond comprehension that plaintiffs' counsel believed himself capable of appearing before three … separate courts located in three … separate counties on three … separate matters in a single morning,” Feuerstein wrote denying plaintiffs' motion to vacate the dismissal.

In their summary order, Circuit Judges Pierre Leval and Peter Hall, with U.S. District Chief Judge Colleen McMahon of the Southern District of New York sitting by designation, expressed sympathy for Feuerstein's and defendants' inconvenience, but found the remedy didn't fit the circumstances.

“There was no excuse for counsel's failure to notify a busy district court judge that his obligations to appear on the same morning in three separate courtrooms in three counties made it likely that he would be late for the conference,” they wrote. “Nonetheless, the sanction imposed was needlessly severe and punished the wrong person.”

The plaintiffs—the Smalls family, who claim Suffolk County law enforcement entered their property twice without proper warrants, and detained one plaintiff unlawfully during a search of their home—had not, in fact, failed to prosecute the case, the panel found. Depositions were taken, discovery was concluded and the matter was ready for trial. While he was late, the panel noted Munier did ultimately arrive at court.

The panel concluded a lesser sanction falling on Munier rather than his clients “would have been sufficient to vindicate the misconduct.”

The panel vacated the dismissal and remanded it back to the district court for further proceedings.

“Nothing in our ruling prohibits the district court from imposing a less severe sanction on plaintiffs' counsel, such as a monetary sanction, sufficient at least to compensate the defendants for their counsel's wasted time,” the panel wrote.

Attempts to reach Munier for comment were unsuccessful.

A spokesman for the Suffolk County Police Department said the department does not comment on pending litigation.