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

Case 1:04-cv-01299-WDM-MJW

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number: 04-CV-01299-WDM-MJW ANTHONY TYRONE SANDERS, Plaintiff, v. UNDER DEPUTY [sic] SHERIFF, et al., Defendants.

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 September 28, 2004 (Docket No. 29). On June 13, 2005, this court conducted a status conference. (See Docket No. 101). Plaintiff appeared by telephone, but during the conference, he was no longer on the telephone line. Subsequent attempts by the court to reconnect the telephone at two different telephone numbers were unsuccessful. The court set a further status conference on August 2, 2005, at 8:30 a.m. Plaintiff was directed to appear in person for that hearing. A Minute Order setting that conference was issued the following day. (Docket No. 102). Thereafter, in an Order on Recommendation of Magistrate Judge issued on July 26, 2005 (Docket No. 104), Judge Miller ruled that Magistrate Judge Watanabe " may revisit the proper sanction for Plaintiff' failure to comply with the March 3, 2005 order s

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2 [which required plaintiff to make a monthly payment or to show cause why he could not do so]." (Docket No. 104 at 4). Plaintiff subsequently moved to reset the status hearing because he would be in jail up until August 11, 2005. (Docket No. 105). He indicated in his letter motion that " once release [sic] i [sic] will send my other address .A.S.AP. [sic]." (Docket No. 105). That motion was granted by Minute Order filed July 28, 2005 (Docket No. 108), in which this court stated: Based upon Judge Miller' Order on Recommendation of s Magistrate Judge (docket no. 104), it is hereby ORDERED that this case is set for hearing on the issue regarding the proper sanctions for Plaintiff' s failure to comply with the March 3, 2005 order. This hearing is set before Magistrate Judge Watanabe August 12, 2005, at 10:00 a.m. in Courtroom A-502, Alfred A. Arraj U.S. Courthouse, 901 Nineteenth Street, Denver, Colorado 80294. It is FURTHER ORDERED that the Pro Se Plaintiff' Motion for s Ext.[sic]- Time (docket no. 105) is GRANTED. The status conference set before Magistrate Judge Watanabe on August 2, 2005, at 8:30 a.m. is VACATED and will be conducted on August 12, 2005, at 10:00 a.m. along with the issue for sanctions. (Docket No. 108). In the margin of a motion entitled, " Motion. Asking The Judge for Mercy"(Docket No. 109), plaintiff once again asked that the August 2, 2005, hearing be reset. That motion was denied as moot in a Minute Order dated August 2, 2004 (Docket No. 11), in which the court specifically advised: In a Minute Order filed July 28, 2005 (Docket No. 108), this court reset the status hearing and set the hearing on the issue regarding the proper sanctions for Plaintiff' failure to comply with the March 3, 2005 order. s Those hearings are currently set before Magistrate Judge Watanabe on August 12, 2005, at 10:00 a.m. in Courtroom A-502, Alfred A. Arraj U.S. Courthouse, 901 Nineteenth Street, Denver, Colorado 80294. Plaintiff

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3 shall appear in person at that date and time, otherwise sanctions may be imposed, which could include dismissal of this action. (Docket No. 111) (emphasis in original). Plaintiff did not appear as directed for the August 12, 2005, hearing. Although the plaintiff' copy of the Minute Order filed July 28, 2005 (Docket No. 108), was s returned to the court by the U.S. Postal Service (see Docket No. 115 filed August 4, 2005), the subsequent order which also advised the plaintiff of the new date (Docket No. 111) has not been returned. Furthermore, based upon representations made by defense counsel, it is apparent that the plaintiff was aware of the August 12 hearing. Attorney Kennedy advised the court that plaintiff had called and provided Kennedy with plaintiff' new address as of August 12. During that conversation, plaintiff appeared to s be aware of the August 12 hearing. Subsequently, two days ago plaintiff left telephone messages for both Kennedy and attorney Lyons indicating that plaintiff wanted them to bring certain documents to the hearing. Similarly, attorney Farry represented to the court that plaintiff had called and spoken with a paralegal and secretary from his office with the same request that he bring documents to the hearing. Plaintiff has not provided the court with a change of address as required by D.C.COLO.LCivR 10.1(M) (" Within ten days after any change of address, telephone number or e-mail address of any attorney or pro se party, notice of the new address, telephone number or e-mail address shall be filed." ). 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

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4 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 Rule 16(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 August 25, 2005, at 8:30 a.m. in Courtroom A-502, Fifth Floor, Alfred A. Arraj U. S. Courthouse, 901 Nineteenth Street, Denver, Colorado, a Show Cause Hearing will be held at which the

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5 plaintiff shall appear in person and show cause why this case should not be dismissed pursuant to Fed. R. Civ. P. 4(m) and/or 41(b) for failure to prosecute, failure to comply with court orders and Local Rules, and failure to appear. In addition to the possible dismissal of this action, other sanctions being contemplated are the attorney fees and costs incurred by defendants having their counsel appear for the August 12 hearing. It is further ORDERED that the plaintiff shall forthwith file a change of address with the Clerk of the Court, with a copy to defense counsel. It is further ORDERED that the Clerk of the Court shall send, by regular mail, a copy of this Order to Show Cause upon the plaintiff at the following address: 1105 Farragut, Colorado Springs, CO 80909.

Dated:

August 12, 2005 Denver, Colorado

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