Accounts Payable Unit of the Corporate Accounting Department. Plaintiff objected to the transfer, and filed an employee grievance, alleging that her lateral transfer was based on her race, sex and/or national origin. FNMA's internal investigation of plaintiff's grievance concluded that the transfer was not discriminatory, and plaintiff was ordered to accept the reassignment. Plaintiff adamantly refused to accept the transfer, and was fired for insubordination on March 27, 1985. The day before her termination, and amended subsequently, plaintiff filed an administrative charge with the Equal Employment Opportunity Commission (EEOC), making the same allegations as in the present Complaint. Following an investigation, on October 10, 1986, the EEOC determined "that there is not reasonable cause to believe that this allegation is true."
II. PROCEDURAL POSTURE
Plaintiff filed this action on January 9, 1987. On February 18, 1987, the Court entered a pretrial schedule agreed to by the parties, closing pretrial discovery on July 31, 1987 and setting the matter for trial on November 9, 1987. As the trial was about to begin on November 9, 1987, and without any advance notice to the Court or opposing party, plaintiff stood and announced to the Court that she was dissatisfied with her counsel and would like a delay to seek replacement counsel. The Court attempted to resolve what appeared to be a minor dispute between plaintiff and her counsel about the calling of two previously undisclosed witnesses to testify on plaintiff's behalf. However, plaintiff persisted in her request for a delay, albeit acknowledging that by doing so she could become liable for defendant's attorney's fees and costs, then estimated to exceed $ 20,000. The Court granted plaintiff's request, but expressly left open the possibility of a later award for fees and costs against plaintiff. Following defendant's Motion for Summary Judgment, the Court sua sponte vacated the rescheduled trial date of September 13, 1988 and set a motions hearing on the following day.
III. DEFENDANT'S MOTION IN LIMINE
On October 27, 1987, defendant filed a motion in limine to simplify and abbreviate the trial by disposing of several evidentiary matters prior to the scheduled November 9, 1987 trial. Because of the Court's disposition herein of defendant's Motion for Summary Judgment, it is not necessary to consider further defendant's Motion in Limine.
IV. DEFENDANT'S MOTION FOR COSTS AND ATTORNEY'S FEES
On November 24, 1987, defendant moved for plaintiff and/or her attorney to be ordered to pay the reasonable expenses, including costs and attorney's fees, incurred by the defendant in preparing for the November 9, 1987 trial as well as the instant motion. Defendant notes that it expended "considerable time and effort preparing for a trial that was postponed ten months due to plaintiff's eleventh hour dissatisfaction with her counsel and lack of preparation for trial." In response, plaintiff has neither attempted to explain nor excuse her egregious delay in moving to discharge her counsel, but instead relies on the assertion that "the right to an attorney of one ['s] choice is so engraved [sic] into our judicial system as to be beyound [sic] question." Even assuming plaintiff is correct, however, it still does not insulate her from the imposition of sanctions for engaging in dilatory tactics.
The imposition of sanctions against litigants and counsel for employing dilatory tactics to perpetuate litigation is implicitly allowed by Rule 11 of the Federal Rules of Civil Procedure, and expressly permitted by 28 U.S.C. § 1927 (1983). Johnson v. Secretary, Dept. of H. & H. Services, 587 F. Supp. 1117, 1121 (D.D.C. 1984) (court has discretion to impose sanctions on attorney who causes needless delay); EEOC v. Appleton Electric Co., 586 F. Supp. 1108 (N.D. Ill. 1984) (imposing sanctions against defendant for unnecessary delays in administrative investigation). The Federal Rules Advisory Committee notes that Rule 11, as amended, "build[s] and expand[s] the equitable doctrine permitting the court to award expenses, including attorney's fees, to a litigant whose opponent acts in bad faith in instituting or conducting litigation." Fed. R. Civ. P. 11, advisory committee notes. Judges in this Circuit have also held that the litigant, as well as or in lieu of counsel, may be liable for fees and costs, where it is the litigant that causes the unnecessary delay. Lipsig v. National Student Marketing Corp., 663 F.2d 178 (D.C. Cir. 1980); Johnson v. Secretary, Dept. of H. & H. Services, 587 F. Supp. at 1121. Other jurisdictions are in accord, where there is a finding that the delay was in bad faith. See e.g., Caspe v. Aaacon Auto Transport, Inc., 658 F.2d 613, 617-18 (8th Cir. 1981) (where party acted in uncooperative and dilatory fashion, including making numerous requests for continuances that prolonged proceedings, court properly assessed attorney's fees against it); Ryan v. Hatfield, 578 F.2d 275 (10th Cir. 1978) (power to award attorney's fees recognized in equity jurisprudence where opponent acts in bad faith, vexatiously or wantonly following dismissal of action for failure to prosecute); Kinnear-Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 637 (5th Cir.), cert. denied, 404 U.S. 941, 92 S. Ct. 285, 30 L. Ed. 2d 255 (where plaintiff's actions were sufficiently dilatory and vexatious to constitute bad faith and that litigation was for purpose of delay and where plaintiff had repeatedly failed to participate in litigation, defendant was entitled to attorney's fees); Flora v. Moore, 461 F. Supp. 1104 (N.D. Miss. 1978), aff'd 631 F.2d 730 (5th Cir. 1980), reh. denied, 636 F.2d 314 (5th Cir. 1981) (meritless employment discrimination action which was pursued in bad faith or for oppressive reasons was properly subject to imposition of attorney's fees); EEOC v. Datapoint Corp., 457 F. Supp. 62 (W.D. Tex. 1978) (court assessed attorney's fees against EEOC as vast majority of defendant's time and expense was spent before trial in preparation of a defense to claims that were frivolous and that the EEOC ultimately abandoned).
Significantly, however the defendant here has not shown that plaintiff's request for a delay in order to secure new counsel was made in bad faith. Indeed, had Judge Sporkin of this Court -- to whom this case was then assigned -- considered the request to have been made in bad faith, he could not have permitted the delay. Thus, defendant's reliance on Rule 11 sanctions is misplaced.
While the Court finds sanctions under Rule 11 inappropriate, defendant need not show plaintiff acted in bad faith to recover reasonable attorney's fees under Section 706(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k). That section provides that
in any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.