Free Motion to Dismiss Case - District Court of Arizona - Arizona

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L AW OF F I C E S M O H R , H A C K E T T, P E D E R S O N , B L A K L E Y & R A N D O L P H , P . C .
2800 NORTH CENTRAL AVENUE, SUITE 1100 P H O E N I X , A R I Z O N A 8 5 0 0 4 -1 0 4 3 T E L E P H O N E ( 6 0 2 ) 2 4 0 -3 0 0 0 F A C S I M I L E ( 6 0 2 ) 2 4 0 -6 6 0 0 (AZ BAR FIRM NO. 0046600)

Robert C. Hackett (AZ Bar No. 001588) ([email protected]) Daniel P. Beeks (AZ Bar No. 012628) ([email protected])

Attorneys for Defendant Metropolitan Life Insurance Company

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) Plaintiff, ) ) v. ) ) American Express Company, (MetLife), ) a New York Corporation, and ) ) Metropolitan Life Insurance Co., a ) Tennesssee Company, ) ) Defendant. ) )

Sybol Terrell-Sims, a married woman,

No. CV 03-1340 PHX SRB DEFENDANT METLIFE'S MOTION FOR DISMISSAL OR SANCTIONS AND RESPONSE TO PLAINTIFF'S MOTION TO PROCEED WITH JANUARY 10, 2006 BENCH TRIAL

Defendant Metropolitan Life Insurance Company ("MetLife") responds to the "Motion to Proceed with January 10, 2006 Bench Trial" ("the Motion") filed by plaintiff Sybol Terrell-Sims ("Plaintiff"), and requests that the Motion be denied. MetLife further requests that this litigation be dismissed as a result of Plaintiff's repeated failures to cooperate and appear in this litigation. Alternatively, MetLife requests that the Court award monetary sanctions against Plaintiff. This response is supported by the following memorandum of points and authorities.

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MEMORANDUM OF POINTS AND AUTHORITIES On December 19, 2005, Plaintiff failed to appear at the pretrial conference scheduled in this matter. On December 22, 2005, the Court issued an order requiring Plaintiff to show cause in writing within ten days as to why the litigation should not be dismissed. On December 29, 2005, Plaintiff e-mailed the Motion to chambers, and e-mailed a copy to MetLife's attorney. 1 In the Motion, Plaintiff alleged that she did not appear at the pretrial conference because she did not know what time the pretrial conference was scheduled, and that someone in the Clerk's office had mistakenly informed her that the Court did not have anything calendared for this case on that date. A. Plaintiff Had Received Both Oral and Written Notice of the Date and Time of the Pretrial Conference Plaintiff's explanation that she was confused as to the time of the pretrial conference is disproved by the paper trail in this litigation. The Court's March 4, 2005 order required the parties to submit a joint proposed pretrial order ("the Joint Pretrial") by December 12, 2005. This order also plainly stated that the pretrial conference would be held on December 19, 2005 at 9:30 a.m. Even if her former attorney had somehow failed to provide Plaintiff with a copy of this order,2 Plaintiff knew when the pretrial conference was scheduled because MetLife's attorney had notified her of the date and time for the conference on several occasions, both verbally and in writing. When MetLife's attorney had not been contacted by Plaintiff to prepare the Joint Pretrial, he called Plaintiff on the afternoon of December 12, 2005. Plaintiff did not answer, and MetLife's attorney left a message explaining that the Court's order required
In reviewing the online docket, it does not appear that the Motion was ever formally filed with the clerk. A copy of the motion is electronically attached to this response. 2 Poor communication with her prior attorney is not a valid excuse. "Suffice it to say, the plaintiff has the responsibility for keeping abreast of all developments in an action that [she] instituted." Spiller v. U.S.V. Laboratories, Inc., 842 F.2d 535, 537 (1st Cir. 1988).
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that the Joint Pretrial was due that day. Plaintiff returned this call on the morning of January 13, 2005. MetLife's attorney explained that the March 4, 2005 order had required that the Joint Pretrial be filed by December 12, 2005, and that the joint pretrial conference was scheduled for December 19, 2005 at 9:30 a.m. MetLife's attorney explained that they needed to prepare and lodge the Joint Pretrial very quickly, so that the Court would have time to review it before the pretrial conference the next Monday. To assist Plaintiff in completing this matter quickly, MetLife's attorney even volunteered to e-mail the Court's preferred form of the Joint Pretrial to Plaintiff. Later that morning, MetLife's attorney sent an e-mail to Plaintiff regarding completing the Joint Pretrial prior to the pretrial conference, and attaching the Court's preferred form.3 The second sentence of this e-mail stated "The pretrial conference is currently set for December 19, 2005 at 9:30 a.m." When MetLife's attorney had not received a draft of the Joint Pretrial from Plaintiff by the afternoon of December 14, 2005, he called Plaintiff again, and left a message following up on the status of the Joint Pretrial. When MetLife's attorney still had not heard from Plaintiff by the close of business, he sent her another e-mail.4 This e-mail again stated that "The pretrial conference is scheduled for Monday." At 7:40 p.m. that evening, Plaintiff responded that she was working on the Joint Pretrial at that time. At 12:05 a.m. on December 15, 2005, Plaintiff finally e-mailed a draft of the Joint Pretrial to MetLife's attorney. MetLife's attorney added MetLife's portions of the document, and e-mailed it back to Plaintiff at 4:05 p.m. that same day. The very first sentence of the revised draft stated: Pursuant to this Court's orders dated December 2, 2003 and March 4, 2005, plaintiff Sybol Terrell-Sims ("Plaintiff") and defendant Metropolitan Life Insurance Company ("MetLife") submit the following separate proposed pretrial order to be considered at the
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A copy of this December 13, 2005 e-mail from MetLife's attorneys is attached as Exhibit "A." 4 A copy of this December 14, 2005 e-mail from MetLife's attorneys is attached as Exhibit "B."
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pretrial conference scheduled for December 19, 2005 at 9:30 a.m. before Judge Bolton. This language was included in all subsequent drafts of the Joint Pretrial, and was retained in the final version that was ultimately lodged with the Court. 5 The parties exchanged additional revisions, and MetLife's attorney e-mailed the finalized document to chambers at 3:40 p.m on Friday, December 16, 2005. MetLife's attorney copied Plaintiff with this e-mail to chambers.6 This e-mail similarly stated: Please find attached the joint proposed pretrial order in this case. The pretrial conference is set for Monday, December 19 at 9:30 a.m. Because of these repeated oral and written notices of the date and time for the pretrial conference, Plaintiff cannot credibly contend that she did not know when it was scheduled. B. Plaintiff's Claim that Someone in the Clerk's Office Mistakenly

Informed Her That There Was No Hearing on the Calendar is Suspect In the Motion, Plaintiff also claims that she called the clerk's office on the morning of December 19, 2005 to confirm the time of the pretrial conference. She further claims that someone named "Erma" erroneously informed her that Judge Bolton did not have anything relating to this case on her calendar that day. This explanation is very suspect because the pretrial conference was showing on the Court's online calendar that morning. Because the Joint Pretrial statement was not filed until late in the afternoon on Friday, December 16, 2005, MetLife's attorney was concerned that the Court might not have had time to review this lengthy document prior to the pretrial conference scheduled for the first thing Monday morning, and that the Court might have vacated the pretrial conference. As a result, MetLife's attorney checked Judge Bolton's online calendar on the morning of December 19, 2005 before driving to the courthouse, to
See Joint Pretrial at pg. 1, line 23. A copy of this December 16, 2005 e-mail from MetLife's attorneys is attached as Exhibit "C."
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make sure the Judge was still planning on proceeding with the pretrial conference. MetLife's attorney observed that the pretrial conference was still listed at 9:30 a.m. on Judge Bolton's calendar. Consequently, it is unlikely that anyone in the clerk's office would have mistakenly advised Plaintiff that the pretrial conference was not on the Court's calendar that day. C. Plaintiff Has Made Similar Claims of Confusion in the Past Plaintiff's claim that she was confused regarding the date and time for the pretrial conference is further undercut by her h istory of making similar claims after failing to appear at her deposition earlier in this litigation. In October, 2004, shortly after Plaintiff's first attorney withdrew, former defendant American Express served Plaintiff with a notice of deposition. Af ter Plaintiff requested additional time to retain new counsel, the deposition was continued until January 11, 2005.7 The notice plainly required Plaintiff to appear at the office of the attorney representing American Express. Plaintiff failed to appear at that deposition as scheduled. When contacted by telephone, she acclaimed that she thought she could appear by telephone. This history of feigned confusion after failing to appear at her deposition suggests that Plaintiff's claim to have been misled by the clerk's office regarding the scheduling of the pretrial conference is less than credible. D. Plaintiff Has Not Established Good Cause for this Court not to Dismiss the Litigation Rule 16(d) makes it mandatory for "any unrepresented parties" to attend a final pretrial conference. Rule 16(f) allows a court to sanction a party that fails to appear for a pretrial conference. One of the sanctions that can be used is dismissal. Local Rule 7.4

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A copy of the December 21, 2004 amended notice of deposition is attached as Exhibit

"D."
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likewise provides that the failure to appear at a hearing can be considered a default. Plaintiff bears the burden of proof to explain her failure to comply with the Court's pretrial orders. See, e.g., In re Air Crash Disaster at Detroit Metro. Airport, 130 F.R.D. 652, 654 (E.D. Mich. 1989). She has failed to present any credible reason for not attending the pretrial conference on December 19, 2005. Courts have dismissed cases when pro se litigants failed to appear for pretrial conferences, especially if the litigants have a history of failing to comply with court orders and discovery deadlines in the past. See, e.g., Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (Judge Posner); Hall v. Flynn, 829 F. Supp. 1401, 1403 (N.D.N.Y. 1993). Here Plaintiff has failed to appear at her deposition, failed to timely prepare the Pretrial Statement, and failed to appear at the pretrial conference. dismissal. The fact that Plaintiff is representing herself does not entitle her to any special lenience. See, e.g. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) ("Pro se litigants must follow the same rules of procedure that govern other litigants."); Jacobsen v. Filler, 790 F.2d 1362, 1364-66 (9th Cir. 1986) ("pro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record."). Despite this Court's warning in its order to show cause, Plaintiff has failed to show good cause why this litigation should not be dismissed for her failure to timely prepare the pretrial statement, and her failure to attend the final pretrial conference. As a result, MetLife requests that this case be dismissed. E. Alternatively, MetLife Requests a Monetary Sanction Alternatively, MetLife requests that this Court impose a monetary sanction on Plaintiff for her failure to timely prepare the joint pretrial statement, and her failure to attend the final pretrial conference. Such monetary sanctions can be awarded even if the Court finds that Plaintiff did not act in bad faith in violating the Court's order. Martin Family Trust v. HECO/Nostalgia Enterprises, Co., 186 F.R.D. 601 (E.D. Cal. This history justifies

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1999) (collecting sources and stating that "both courts and commentators agree that sanctions may be imposed for a party's unexcused failure to comply with a Rule 16 order, even if that failure was not made in bad faith"). MetLife requests that the Court award it $1,000 to compensate it for: (1) the extra fees it incurred as a result of Plaintiff's failure to timely prepare the Pretrial Statement; (2) the fees it will incur in the future for its attorneys to prepare for and attend any rescheduled t pretrial conference; and (3) to respond to the Motion. F. Conclusion Both the Court and MetLife have been very patient with Plaintiff's attempts to represent herself at various points during this litigation. Neither the Court nor MetLife should be required to expend any more of their resources if Plaintiff is not willing or able to participate in this litigation without counsel. Plaintiff failed to attend the pretrial conference despite repeated oral and written notices of when it was scheduled. Her attempts to explain away her failure to attend are disproved by the paper trail, and are not credible. MetLife requests that this Court exercise its discretion under Rule 16(f) to either dismiss this litigation, or to award monetary sanctions to MetLife. DATED: January 5, 2006 MOHR, HACKETT, PEDERSON, BLAKLEY & RANDOLPH, P.C. By /s/ Daniel P. Beeks Robert C. Hackett Daniel P. Beeks Suite 1100 2800 North Central Avenue Phoenix, Arizona 85004-1043 Attorneys for Defendant Metropolitan Life Insurance Company

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COPIES of the foregoing mailed January 5, 2006 to: The Honorable Susan R. Bolton United States District Court of Arizona 401 West Washington, SPC 50 Phoenix, AZ 85003-0001 Sybol Terrell-Sims P.O. Box 93428 Phoenix, Arizona 85070 Plaintiff

/s/ Daniel P. Beeks

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