Free Order to Show Cause - District Court of Colorado - Colorado

Case 1:03-cv-01411-PSF-MJW

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Filed 09/14/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01411-PSF-MJW CYNTHIA A. APA, Plaintiff(s), v. QWEST CORPORATION, Defendant(s).

ORDER TO SHOW CAUSE

MICHAEL J. WATANABE United States Magistrate Judge

This case is before this court pursuant to an Order of Reference to Magistrate Judge issued by District Judge Walker D. Miller on October 16, 2003. (Docket No. 6). The case was subsequently reassigned to District Judge Philip S. Figa on November 6, 2003. (Docket No. 8). In a Minute Order dated August 26, 2005 (Docket No. 61), this case was set for a Settlement Conference on September 14, 2005, at 8:00 a.m., in Courtroom A-502, Fifth Floor, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado. In that Minute Order, the court specifically directed: FURTHER, IT IS ORDERED that counsel and pro se litigants shall have parties present who shall have full authority to negotiate all terms and demands presented by the case, and full authority to enter into a settlement agreement, including an adjustor if an insurance company is involved. "Full authority" means that the person who attends the settlement conference has the complete and unfettered capacity and

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2 authority to meet or pay all terms or amounts which are demanded or sought by the other side of the case without consulting with some other person, committee or agency. If any person has limits upon the extent or amount within which he or she is authorized to settle on behalf of a party, that person does not have "full authority." No party shall be permitted to attend the settlement conference by phone unless that party has obtained leave of Court following the filing of an appropriate motion, no later than five (5) business days prior to the settlement conference date. ... (Docket No. 61) (emphasis in original). Despite these clear directives, plaintiff failed to appear as ordered by the court for the Settlement Conference on September 14, 2005, at 8:00 a.m. She did, however, finally telephone the court' chambers at approximately 8:42 a.m., by which time the s court had already reset the matter and set a Show Cause hearing. When speaking to a member of the court' staff, plaintiff claimed that she had a death in the family and s thought that the court matter was set at 1:00 p.m. Plaintiff was advised that the hearing was reset, was given the new date and time for the hearing, and was instructed to call her attorney, John McKendree, Esq., who did appear for the settlement conference as directed, as did a representative of the defendant and defense counsel. The court notes that on August 31, 2005, Mr. McKendree filed a motion to withdraw as attorney of record for the plaintiff (Docket No. 62), and that a hearing on that motion was set for September 20, 2005, at 8:30 a.m. (Docket No. 64). Nothing in the Minute Order setting that motion hearing, however, vacated the Settlement Conference. Furthermore, in the NOTIFICATION RE: MOTION TO WITHDRAW AS COUNSEL OF RECORD FOR PLAINTIFF CYNTHIA A. APA, which was filed by

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3 plaintiff' counsel with his motion to withdraw and addressed to the plaintiff (Docket No. s 62-2), plaintiff was advised, in relevant part, that " settlement conference is [a] scheduled for September 14, 2005 at 8:30 a.m. before the honorable Judge Watanabe . . . ." (Docket No. 62-2 at ¶ 3). The court further notes that on the morning of September 14, 2005, the weather in Denver was sunny and dry, and the roads were clear. . 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 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).

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4 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 September 20, 2005, at 8:30 a.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 shall appear in person and show cause (1) why she 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 she should not be directed to pay the reasonable expenses incurred, including attorney fees, by the defendant for the defendant' appearance at the September 14, 2005, Settlement s Conference. Plaintiff' failure to appear at this hearing will result in a recommendation s to Judge Figa that sanctions be imposed against the plaintiff, including dismissal of this action with prejudice. It is further ORDERED that the Settlement Conference is reset to September 20, 2005, at 8:30 a.m. in Courtroom A-502, Fifth Floor, Alfred A. Arraj U. S. Courthouse, 901 Nineteenth Street, Denver, Colorado. As previously directed, counsel and pro se litigants shall have parties present who shall have full authority to negotiate all terms

Case 1:03-cv-01411-PSF-MJW

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5 and demands presented by the case, and full authority to enter into a settlement agreement, including an adjustor if an insurance company is involved. "Full authority" means that the person who attends the settlement conference has the complete and unfettered capacity and authority to meet or pay all terms or amounts which are demanded or sought by the other side of the case without consulting with some other person, committee or agency. If any person has limits upon the extent or amount within which he or she is authorized to settle on behalf of a party, that person does not have "full authority." No party shall be permitted to attend the settlement conference by phone unless that party has obtained leave of Court following the filing of an appropriate motion, no later than five (5) business days prior to the settlement conference date. It is further ORDERED that the Clerk of the Court shall manually mail a copy of this Order to the plaintiff at the following address: Cynthia A. Apa 7664 Reed Street Arvada, CO 80003

Dated:

September 14, 2005 Denver, Colorado

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