Free Motion to Enforce - District Court of Colorado - Colorado

Case 1:03-cv-02422-WDM-OES

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Filed 08/04/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-2422-WDM-OES LUTHER EARL MADRY, JR., Plaintiff, v. LISA PICKERING, GILBERT J. LADRINI, JR., JEFFERY MAIZE, and DANIEL ANDERSON, Defendants.

MOTION TO ENFORCE COURT'S JULY 12, 2005 ORDER ______________________________________________________________________________ Defendants, LISA PICKERING, GILBERT J. LADRINI, JR., JEFFERY MAIZE, and DANIEL ANDERSON ("Defendants"), by their attorneys, THOMAS S. RICE and GILLIAN FLENER of the law firm SENTER GOLDFARB & RICE, L.L.C., and pursuant to Fed.R.Civ.P. 16(f) and 37(b), hereby move this Court to enforce its order of July 12, 2005 [Dkt #77], and dismiss Plaintiff's case with prejudice and enter judgment against Plaintiff in the amount of $135.00. AND AS GROUNDS THEREFOR, Defendants state as follows: 1. Pursuant to D.C.COLO.LCivR 7.1(A) undersigned counsel cannot confer by

telephone with Mr. Madry, the pro se Plaintiff in this matter, because Mr. Madry has never provided a telephone number at which he can be reached. Therefore, the attached

correspondence was mailed to Plaintiff on July 29, 2005 and requested that Plaintiff contact the

Case 1:03-cv-02422-WDM-OES

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offices of the undersigned regarding the $135.00 he was directed to pay to defense counsel. [See, Exhibit A.] As of the date of the filing of this motion, Plaintiff has not responded to this correspondence. 2. Fed.R.Civ.P. 16(f) provides that if a party is substantially unprepared to

participate in the Scheduling Conference or if a party fails to participate in good faith, the Judge, upon motion or the Judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), and (D). Fed.R.Civ.P. 37(b)(2)(B), (C), and (D) provide, in part, that the Court may enter any of the following orders: (1) 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; (2) an order striking out pleadings or parts thereof, dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party; or (3) an order treating as a contempt of court the failure to obey any order. (emphasis added). Fed.R.Civ.P. 16(f) further provides that in lieu of or in addition to any other sanction, the judge shall require the party to pay reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees. (emphasis added). 3. On July 12, 2005, Plaintiff failed to timely appear for the Scheduling Conference

in this matter, and the Court ruled that Plaintiff could not demonstrate cause for his failure to appear at the designated time. Accordingly, as a sanction, the Court ordered that Plaintiff shall pay the Defendants' attorney's fees in this regard in the sum of $135.00. The Court ordered that the deadline for Plaintiff to pay this fee was 4:00 p.m. on July 22, 2005. To date, undersigned counsel has not received Defendants' attorney's fees in the amount of $135.00. This is yet

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another example of Plaintiff's failure to comply with the Federal Rules of Civil Procedure and the Court's Orders1. 4. The Court's July 12, 2005 Order clearly states that Plaintiff is warned that failure

to pay the $135.00 sanction by that date [July 22, 2005] may result in the imposition of additional sanctions, including the dismissal of his case. Because Plaintiff has failed to comply with the Court's Order, Plaintiff's case should be dismissed with prejudice pursuant to Fed.R.Civ.P. 16(f) and 37(b).

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See, Courtroom Minutes of July 12, 2005 [Dkt #76] indicating that the Court questioned Plaintiff regarding his tardiness to the hearing and noted that the Preliminary Scheduling/Status Conference has been set several times due to either Plaintiff's tardiness or failure to appear.

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WHEREFORE, Defendants respectfully request that this Court enter orders as follows: (a) (b) Dismissing Plaintiff's case with prejudice; Entering judgment in favor of Defendants Pickering, Ladrini, Maize, and Anderson, and against Plaintiff in the amount of $135.00; (c) Granting judgment in favor of Defendants Pickering, Ladrini, Maize, and Anderson, and against Plaintiff for the reasonable expenses incurred due to Plaintiff's noncompliance, including attorney's fees; and (d) Such further and additional relief as the Court deems just and proper. Respectfully submitted,

s/ Gillian Flener Gillian Flener Senter Goldfarb & Rice, L.L.C. 1700 Broadway, Suite 1700 Denver, CO 80290 Telephone: (303) 320-0509 FAX: (303) 320-0210 E-mail: [email protected] Attorney for Defendants

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CERTIFICATE OF MAILING I HEREBY CERTIFY that on this 4th day of August, 2005, a true and correct copy of the above and foregoing MOTION TO ENFORCE COURT'S JULY 12, 2005 ORDER was filed with the Clerk of Court using the CM/ECF system and was placed in the U.S. Mail, first class postage pre-paid, addressed to: Luther Earl Madry, Jr., Pro Se 1331 Downing Street, #302 Denver, Colorado 80218

s/ Stephanie Nelson Stephanie Nelson E-mail: [email protected] Secretary for Attorney Gillian Flener

00189358

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