Free Report and Recommendations - District Court of Colorado - Colorado

Case 1:00-cv-02350-LTB-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-02350-LTB-MJW

PAULETTE GOMEZ, Plaintiff, v. KING SOOPERS, INC., Defendant.

RECOMMENDATION THAT THIS ACTION BE DISMISSED BASED UPON THE PLAINTIFF' FAILURE TO S APPEAR, FAILURE TO COMPLY WITH COURT ORDERS, AND FAILURE TO PROSECUTE

MICHAEL J. WATANABE United States Magistrate Judge

This case is before this court pursuant to an Order of Reference to United States Magistrate Judge issued by Chief Judge Lewis T. Babcock on February 15, 2005. (Docket No. 14). This case was administratively closed on March 7, 2001 (Docket No. 6), and reopened on January 31, 2005 (Docket No. 13), upon plaintiff' motion to s reopen (Docket No. 8). In a Scheduling Order filed on April 15, 2005 (Docket No. 17), a Settlement Conference in this matter was set for August 2, 2005, at 1:30 a.m. In that Scheduling Order, the parties were also each directed to submit a Confidential Settlement

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2 Statement to the court on or before July 28, 2005. (Docket No. 17 at 11, ¶ 10(a)). A copy of that Scheduling Order was sent by regular mail to the plaintiff' counsel, s Cecilia M. Serna, Esq., and that copy was not returned to the court by the U.S. Postal Service. In addition, the Courtroom Minutes/Minute Order issued after the Scheduling Conference similarly directed: SETTLEMENT CONFERENCE set for: August 2, 2005, at 1:30 p.m. Confidential settlement statements are due to Magistrate Judge Watanabe by July 28, 2005. All attorneys, parties and/or representatives with full settlement authority shall be present at the settlement conference in courtroom A-502. (Emphasis added by underscore). Ms. Serna was present at that Scheduling Conference, and a copy of the Courtroom Minutes/Minute Order was mailed to Ms. Serna by regular mail. That copy was not returned by the U.S. Postal Service. By Minute Order filed on June 9, 2004 (Docket No. 27), this court granted the Defendant' Unopposed Motion to Vacate and Reset Settlement Conference, which s was filed on June 6, 2005. (Docket No. 25). In that Minute Order, the court vacated the August 2, 2005, settlement conference and reset it for September 7, 2005, at 1:30 p.m. (Docket No. 27). In addition, the court directed in that Minute Order that the parties submit their confidential settlement statements to the court on or before September 2, 2005. (Docket No. 27). Furthermore, counsel were reminded " that persons with complete settlement authority shall be present in person for the settlement conference." (Docket No. 27). A copy of that Minute Order was sent by regular mail to

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3 Ms. Serna, and that copy was not returned to the court by the U.S. Postal Service. Despite these clear directives, neither the plaintiff nor her counsel appeared as directed for the Settlement Conference on September 7, 2005, at 1:30 p.m., nor did they seek a continuance or even telephone the court regarding the conference. In addition, neither plaintiff nor her counsel submitted a confidential settlement statement as ordered by this court. At the court' direction, prior to the court going onto the record, my secretary s telephoned Ms. Serna' office and asked to speak with Ms. Serna. The woman who s answered the office telephone transferred the call, which went into voice mail. My secretary hung up the telephone and then called that office again. She identified herself as my secretary and asked if Ms. Serna was there. The woman who had again answered the telephone said she did not know if Ms. Serna was there, but she would check. When she returned on the line, she indicated that she got Ms. Serna' voice s mail again, and upon inquiry, she said that she had not seen Ms. Serna at all that day. She then said she would try Ms. Serna' cellular telephone, but she immediately went s into voice mail on that line as well. My secretary then asked if there was a partner or someone who practiced with Ms. Serna who might cover Ms. Serna' appearances in s her absence, and the response was, " no." When the woman covering Ms. Serna' s telephone was asked if she had access to Ms. Serna' calendar, she responded that s she did not and that she handled only the mail and the telephone. The court then convened at 1:55 p.m. on September 7, 2005, but there still was no appearance by the plaintiff or plaintiff' counsel. The court notes that the weather in s

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4 Denver that day was sunny and dry, and the roads were clear. Defense counsel and a representative for the defendant appeared for the Settlement Conference and had submitted a confidential settlement statement as directed. Based upon the above, this court issued an Order to Show Cause on September 7, 2005 (Docket No. 35), in which the plaintiff and her attorney were advised of the provisions of Fed. R. Civ. P. 16(f), 37(b)(2)(B), (C), and (D), and 41(b), and they were both directed to appear before this court in person on October 13, 2005, at 1:30 p.m. and show cause (1) why they should not be held in contempt of court and why this case should not be dismissed pursuant to Fed. R. Civ. P. 16(f) and/or 41(b) for failure to prosecute, failure to appear, and failure to comply with court orders and (2) why they should not be directed to pay the reasonable expenses incurred, including attorney fees, by the defendant for the defendant' appearance at the September 7, s 2005, Settlement Conference. A copy of that Order to Show Cause was mailed to the plaintiff' attorney, and that copy was not returned to the court by the United States s Postal Service.1 Nevertheless, neither plaintiff nor her attorney appeared as directed on October 13, 2005, nor did they move for a continuance or even telephone the court at the time set for the hearing. The court did not go on the record on this matter until 1:45 p.m., yet plaintiff and her attorney still had not appeared. Defense counsel appeared
1

Plaintiff' counsel had been instructed verbally by this court' chambers on a s s prior occasion in another case that she had to register for CM/ECF, but to date this court does not have plaintiff' counsel' e-mail address. Therefore, the Order to Show s s Cause was delivered by regular mail to plaintiff' counsel' last known business s s address.

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5 for the hearing. The court notes that the weather in Denver at that time was dry, sunny, and clear. Upon inquiry, defense counsel advised the court that he had had no contact with plaintiff' counsel and has had no contact with her since July. Furthermore, the plaintiff s has not complied with a Minute Order issued on September 30, 2005 (Docket No. 42), in which the Defendant' Motion to Compel Rule 35 Examination (Docket No. 33) and s the Defendant' Motion to Compel (Docket No. 31) were granted.2 In that Minute s Order, this court ordered the plaintiff to undergo a vocational rehabilitation examination conducted by Judy Kay Lockwood, directed the parties to forthwith meet, confer, and clear a date and time for such examination, and ordered the plaintiff to provide the documents identified in her discovery responses to the Defendant and sign the written releases for her workers' compensation records, medical records, psychotherapy records, employment records, records from prospective employers, and academic records to the defendant on or before October 11, 2005. At the conclusion of the October 13, 2005, proceeding, defense counsel requested that the plaintiff be directed to pay the reasonable expenses incurred, including attorney and expert fees, by the defendant in defending this action since the time the plaintiff sought to have this case reopened in March 2004. As noted in this court' previous Order to Show Cause, Rule 16(f) of the Federal s Rules of Civil Procedure provides in relevant part:

As noted in that Minute Order (Docket No. 42), plaintiff did not file any response to the defendant' motions, and, therefore, this court deemed the motions confessed. s

2

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6 If a party . . . fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a . . . pretrial conference . . . the judge, upon motion or the judge' own initiative, may make such s orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney' fees, unless the judge finds that the s noncompliance was substantially justified or that other circumstances make an award of expenses unjust. Fed. R. Civ. P. 16(f). Rule 37(b)(2)(B), (C), and (D), which is referenced in Rule16(f), permits the following sanctions: (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; (D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(B), (C), (D) (emphasis added). Furthermore, Rule 41(b) provides in pertinent part: For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule . . . operates as an adjudication upon the merits. Fed. R. Civ. P. 41(b). Based upon the foregoing, this court finds that the plaintiff and her attorney have failed to appear, failed to prosecute this action, and failed to comply with this court' s

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7 orders (namely, Docket Nos. 27, 35, and 42). It is thus RECOMMENDED that this case be dismissed pursuant to Fed. R. Civ. P. 16(f) and/or 41(b) based upon the plaintiff' and her attorney' failure to prosecute, failure to s s appear, and failure to comply with court orders. In addition, it is recommended that the plaintiff and her counsel be directed to pay the reasonable expenses incurred by the defendant, including attorney fees, for appearing for the September 7 and October 13, 2004, hearings and for failing to obey this court' Minute Order issued on s September 30, 2005 (Docket No. 42), in which the Defendant' Motion to Compel Rule s 35 Examination (Docket No. 33) and the Defendant' Motion to Compel (Docket No. 31) s were granted. Finally, it is recommended that should the recommendation of dismissal be accepted, that the plaintiff be directed to show cause why she should not be directed to pay the reasonable expenses incurred, including attorney and expert fees, by the defendant in defending this action since the time the plaintiff sought to have this case reopened in March 2004.

Dated:

October 13, 2005 Denver, Colorado

s/Michael J. Watanabe Michael J. Watanabe United States Magistrate Judge