Free Order to Show Cause - 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.

ORDER TO SHOW CAUSE

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). 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 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

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2 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 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.

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3 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 had not seen Ms. Serna at all that day. She then said she would try Ms. Serna' cellular telephone, but she immediately went into s 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 Denver 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. Rule 16(f) of the Federal Rules of Civil Procedure provides in relevant part: 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

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4 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 s finds that the 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, it is hereby ORDERED that on October 13, 2005, at 1:30 p.m. in Courtroom A-502, Fifth Floor, Alfred A. Arraj U. S. Courthouse, 901 Nineteenth Street, Denver, Colorado, a hearing will be held at which the plaintiff, Paulette Gomez, and her attorney, Cecilia

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5 Serna, Esq., shall both appear in person 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' s appearance at the September 7, 2005, Settlement Conference.

Dated:

September 7, 2005 Denver, Colorado

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