Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01633-LTB-OES

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1633-LTB ANNABELLE D. MATA, Plaintiff, v. JUDY SAIZ; and DANA WELDON Defendants.

PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE [Doc. 102]

Plaintiff ANNABELLE D. MATA, by and through her counsel, Andrew B. Reid of the WALTER L. GERASH LAW FIRM, P.C., hereby submits this Response to Defendants' Motion to Dismiss for Failure to Prosecute [Doc. 102] together with the supporting affidavit and the Entry of Appearance. INTRODUCTION Following the initial filing of this Eighth Amendment civil rights lawsuit, this matter was hotly litigated by the parties and extensive discovery was made and many depositions were taken of expert and fact witnesses. [See, e.g., Docs. 61, 63, 72, 78] On August 15, 2002, Defendants moved to stay the proceedings pending determination of their dispositive motion based on qualified immunity. [Docs. 60, 61] On October 1, 2002, the Court granted the motion to stay. [Doc. 79] On April 22, 2003, the Court granted in part Defendants' dispositive motion [Doc. 81] and granted Plaintiff's motion for Rule 54(b), F.R.Civ.P., certification on May 22, 2003. [Doc. 87] Final judgment was entered on June 4, 2003 [Doc. 92], and an appeal was taken [Doc. 95].

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This Court's judgment was affirmed in part and reversed in part by the Court of Appeals. Mata v. Saiz, 427 F.3d 745 (10th Cir. 2005). On February 6, 2006, the claim against Defendant Dana Weldon was remanded back to this Court. [Doc. 98] Pursuant to a previous stipulation, the remaining claim against Defendant Saiz was also reinstated. [Doc. 85] On February, 2006, as Plaintiff's lead counsel, Robert C. Ozer had died, Mr. Ozer's partner, Renee Christine Ozer, filed a Motion to Withdraw. [Doc. 99] This Court granted the Motion on June 30, 2006. [Doc. 100]. On July 11, 2006, the Order concerning the Motion to Withdraw was returned as undeliverable to the address for the Plaintiff. [Doc. 101]. The Defendants have moved for dismissal with prejudice for lack of prosecution. [Doc. 102] The Defendants' sole contention is that the Plaintiff violated a local rule, D.C.Colo.L.R. 10.1(M) because an updated address for the Plaintiff had not been provided to the Court for 3 months following the death and withdrawal of Plaintiff's counsel, effective June 30, 2006. Motion, ¶s 6 and 8 [Doc. 102]. The Defendants contend that a violation of this local rule justifies dismissed for a failure to prosecute. Id., ¶s 8 and 9. Defendants cite no other violation by Plaintiff of any rule or order of the Court. And, importantly, Defendants cite no prejudice to them other than their desire "to see this matter conclude." Id., ¶11. As stated in Plaintiff's Affidavit submitted herewith and as noted in the opinion of the Tenth Circuit and as shown to this Court in the submissions in Plaintiff's response to the previous motion for summary judgment [Doc. 72], Plaintiff suffered a heart attack in October, 2000, while under the care of the Defendants. Mata, 427 F.3d at 751. Plaintiff has continued having severe heart and other serious health problems to the present day. See generally, Affidavit of Plaintiff. She was constantly in and out of the hospital and by early 2006 was forced to stay with relatives as she was unable to care for herself. Id., ¶3. On March 14, 2006, the

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Plaintiff had another heart attack and had double bypass heart surgery on March 15, 2006. Id., ¶4. She convalesced at a friend's house for one week before being moved to nursing homes for approximately 3 months. Id., ¶5. She was then moved to her current residence at the Wheatridge Assisted Living facility at the end of July, 2006. Id. She has been hospitalized approximately 20-30 times, including approximately 5 times this year alone for an angioplasty, a heart stent, open heart double bypass surgery, and other serious health problems. Id., ¶6. Because of her severe health problems, her many stays in the hospital, her inability to care for herself, and her many impermanent places of residence prior to and since February, 2006, it was extremely difficult for Plaintiff to seek and obtain replacement counsel. Id., ¶7. In August and September, 2006, at Plaintiff's request, her current counsel, the Walter L. Gerash Law Firm, P.C., obtained the Plaintiff's voluminous file from Ms. Ozer, made a preliminary review of the file, worked out issues regarding the fees and costs of the litigation with Ms. Ozer, and agreed to enter the case as replacement counsel for the Plaintiff. Id., ¶8. Plaintiff entered into a new fee agreement and her current counsel was conducting a full review of the file and preparing to enter at the time Defendant submitted their motion to dismiss. Id., ¶8. Her current counsel has now entered this case on her behalf and is prepared to proceed. [Doc. 104] A district court has the inherent power to dismiss an action with prejudice for willful and inexcusable failure to prosecute. See, Link v. Wabash R.R. Co., 370 U.S. 626 (1962); F.R.Civ.P. Rule 41(b). However, "dismissal is a severe sanction and is not ordinarily warranted if lesser sanctions would be effective." Jones v. Thompson, 996 F.2d 261, 265 (10th Cir. 1993). "[B]ecause dismissal with prejudice1 defeats altogether a litigant's right to access to the courts, it

Even a dismissal "without prejudice" can, in effect, be a dismissal with prejudice where as here the statute of limitations has passed. Under such circumstances, a dismissal without prejudice is to be treated as a dismissal with

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should be used as a weapon of last, rather than first, resort." Meade v. Grubbs, 841 F.2d 1512, 1520, n. 6 (10th Cir. 1988) (citations, quotations and emphasis omitted). As noted by the Defendants, a district court must first consider certain factors designed to caution against premature or unreflective resort to this "drastic" and "extreme" sanction. These factors, set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), include "(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; ...(3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal ... would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). DEFENDANTS SUFFERED NO PREJUDICE BY THE 3 MONTH DELAY WHILE PLAINTIFF OBTAINED REPLACEMENT COUNSEL As noted above, the only purported prejudice Defendants have alleged is a 3-month delay in their "desire to see this matter conclude." Defendants make this statement after having moved to stay the action between August 15, 2002 and the date of remand on February 6, 2006 - a period of 3 and ½ years. During the period following remand to the current date, Defendants made no effort to move the case along or prosecute their defense other than to file their motion to dismiss approximately one week ago, on October 17, 2006. No discovery was had and no modified, revised, or renewed scheduling order was requested by the Defendants that would have set the trial date and deadlines in this matter. Even had the Court and Defendants been provided the Plaintiff's various temporary addresses following the withdrawal of Plaintiff's counsel, Defendants have not demonstrated that they would have filed anything or done anything that would have required any response from the Plaintiff during that period. Plaintiff certainly accepts that she is obligated to prosecute her claims but was, in contrast to the Defendants,
prejudice when considering a motion to dismiss. See, e.g., Shipp v. Widnall, 166 F.3d 348 (table), 1998 WL 873052 (10th Cir. 1988); Cook v. Fed. Bur. of Prisons, 2006 WL 898111, *3 (D.Colo. 2006) (J. Nottingham).

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confronted with having to do so indigent, without counsel, largely homeless, and often from a hospital bed and unable to care for herself. Any purported prejudice of Defendants was cause by their own failure to prosecute their defenses or was de minimus. INTERFERENCE WITH THE JUDICIAL PROCESS The second Erenhaus factor, the amount of interference with the judicial process, also does not justify dismissal with prejudice. As mentioned in the previous section, Defendants have cited no motion, no discovery, no order of the court, nor any other process in this matter that was frustrated or compromised by the 3-month failure of the Plaintiff to provide the Court and Defendants with her temporary addresses following her counsel's withdrawal. As yet, there has been no modified or new scheduling order issued by the Court following remand. The delay following remand is certainly understandable given the death and withdrawal of Plaintiff's counsel, the living and health problems of the Plaintiff, and Plaintiff's difficulty in locating replacement counsel. Although technically any delay interferes with the judicial process, that which is unavoidable and unintentional, as here, should be excused. Now that Plaintiff has replacement counsel that has appeared in this action and now that she has provided the Court and Defendants with her current address, the matter can proceed. Motion, ¶11 [Doc. 102]. THE PLAINTIFF WAS MINIMALLY CULPABLE As also noted in detail above and in her Affidavit, following remand and the death and withdrawal of her counsel, Plaintiff was under extreme hardships. She was without counsel, indigent, largely homeless, and suffering from severe illness and physical disability. Certainly the Plaintiff is obligated, even proceeding pro se following the withdrawal of counsel, to prosecute her claims and comply with the local rule that she provide the Court and the Defendants within 10 days with an address where she can be contacted. However, given the

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circumstances of the withdrawal of counsel, her lack of any permanent place of residence, and her severe disabilities and frequent hospitalization, this oversight by the Plaintiff was not intentional and is understandable. THE PLAINTIFF WAS NOT WARNED IN ADVANCE Unlike Erenhaus, the Plaintiff here was not warned in advance by the Court of the possibility of dismiss of her claims for a failure to prosecute. See, e.g., Hopkins v. Hopkins, 162 F.3d 1173 (table), 1998 WL 704710, **2 (10th Cir. 1998). The need for a warning is particularly apropos given the fact that extensive discovery and depositions have already been conducted, given that the Tenth Circuit Court of Appeals had just recognized the merits of her claims, and given that the Plaintiff was proceeding pro se following the death and withdrawal of her counsel. Certainly these are not frivolous claims, nor has the Plaintiff demonstrated a lack of interest in pursuing them. LESSER SANCTIONS Obviously where lesser sanctions are available, the Court should not resort to the "drastic" and "extreme" sanction of dismissal with prejudice. Jones, 996 F.2d at 265; see also, e.g., Shipp v. Widnall, 166 F.3d 348 (table), 1998 WL 873052, **3 (10th Cir. 1998); Hopkins, 1998 WL 704710, *3. Here no sanctions, let alone dismissal with prejudice, are appropriate. Defendants have cited no cognizable prejudice and the matter can now proceed since replacement counsel has appeared for the Plaintiff. If Defendants are anxious to conclude this matter, Plaintiff will certainly cooperate in setting an expeditious trial date and revised deadlines. CONCLUSION For all of the foregoing reasons, Plaintiff Annabelle D. Mata respectfully requests this Court deny the Defendants' motion to dismiss this action with prejudice.

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Dated this 30th day of October 2006. Respectfully submitted,

/s Andrew B. Reid Andrew B. Reid WALTER L. GERASH LAW FIRM, PC 1439 Court Place Denver, CO 80202 Phone: 303.825.5400 Fax: 303.623.2101 Email: [email protected] ATTORNEYS FOR THE PLAINTIFF
Original Signature on File At Walter L. Gerash Law Firm, PC

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 30th day of October 2006, I electronically filed the foregoing PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following email addresses: CM/EFC participants in the manner indicated by the non-participant's name: Thomas J. Lyons, Esq. Edmund M. Kennedy, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 Phone: 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] /s Andrew B. Reid Andrew B. Reid
Original Signature on File At Walter L. Gerash Law Firm, PC

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