MARTIN REIDINGER, District Judge.
For the reasons stated below, the Plaintiff's Complaint is dismissed with prejudice and the Plaintiff's motions are denied.
The Plaintiff, proceeding pro se, filed this action on October 23, 2015, against the Defendants asserting claims of discrimination pursuant to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. [Doc. 1]. The Plaintiff chose to participate in the Western District of North Carolina Pro Se Settlement Assistant Program (hereinafter "Pro Se Program") and pursuant thereto, Plaintiff was appointed counsel for the limited purpose of assisting in a mediated settlement conference held on April 14, 2016, that resulted in an impasse. [Docs. 16, 18, 20]. Thereafter, on May 6, 2016, the parties filed their certification of initial attorney conference and discovery plan (hereinafter "CIAC"). [Doc. 21]. The Plaintiff asserted in the CIAC that the Defendants had engaged in criminal misconduct, obstruction of justice, racketeering, violated her Fourth, Fifth, and Fourteenth Amendment rights, and would perpetrate fraud upon the Court. [
On May 10, 2016, the Court entered a Pretrial Order and Case Management Plan (hereinafter "Case Management Order"), setting this matter for trial during the May 8, 2017 civil trial term. [Doc. 22]. On October 11, 2016, the Court amended the Case Management Order, extending certain deadlines to complete discovery and file motions; however, the matter remained set for trial during the May 8, 2017 civil term. [Doc. 58]. On March 8, 2017 the Court supplemented the Case Management Order setting forth requirements and deadlines related to the upcoming trial, such as the filing of evidentiary motions, the designation of the excerpts of deposition transcripts to be used at trial, the exchange of exhibits and exhibit lists, and the filing of trial briefs, proposed jury instructions and proposed issues. [Doc. 87]. The matter still remained set for trial during the May 8, 2017 civil term. [
On March 24, 2017, the Court held a hearing on the Defendants' motions for summary judgment, which were denied. [
On April 5, 2017, the Court granted the Defendants' second motion for a Judicial Settlement Conference (hereinafter "JSC") and set the JSC for April 24, 2017. [Docs. 88, 89].
On April 19, 2017, the Court's chambers received a telephone call from attorney Charles Brewer (hereinafter "Mr. Brewer") who indicated that he and another attorney, Gary Dodd (hereinafter "Mr. Dodd"), would possibly make an appearance in the case for the Plaintiff. However, Mr. Brewer expressed concern about making such a late appearance in light of the case schedule. In response to the aforementioned telephone call, the Court noticed a hearing for a status conference. [
On April 24, 2017, the JSC resulted in an impasse and the April 26, 2017, deadline passed without an attorney filing an appearance on behalf of the Plaintiff. [
On April 28, 2017, the Court held a lengthy final pretrial conference with the parties. [
At the final pretrial conference, the Plaintiff also asserted that the JSC had been "very traumatic," and accused the Defendants of having perpetrated a fraud upon the Court. The Plaintiff then inquired as to when the Court would pierce the corporate veil, and asserted that any result at the trial of this matter would be void. The Plaintiff went on to admit that she had not subpoenaed any witnesses for the trial and had not exchanged any exhibits with the Defendants, despite having received the Defendants' exhibits. The Plaintiff often made statements that were not pertinent to the Court's inquiries and would refer to documents that, after rummaging through her voluminous papers and boxes, she could not find. Once again, the Plaintiff made another motion to continue (hereinafter "Second Motion to Continue") the trial date. The Court denied the Plaintiff's request for a continuance, but under the circumstances, gave the Plaintiff a new deadline of 12:00 p.m. on May 1, 2017, to provide her exhibits to the Defendants.
On May 2, 2017, well past nearly all of the Plaintiff's deadlines and only six (6) days before trial, the Plaintiff filed a motion entitled "Plaintiff's Motion for Extension of Time to Continue Trial" (hereinafter "Third Motion to Continue"). [Doc. 101]. The Court noticed the motion to be heard on May 5, 2017. [
Later in the hearing, the Plaintiff stated for the first time that she wanted to play some unspecified recording or recordings during the trial. The Defendants objected, arguing that Plaintiff had never provided a copy of such recording(s) in discovery, and had not even disclosed the existence of such recording(s). The Plaintiff then inquired into how to designate excerpts of deposition transcripts from another matter that she intended to present at the trial of this matter. The Court directed Plaintiff to email the deposition transcripts and designations to Defendants' counsel as soon as possible and provide an exhibit list that followed the instructions of the Case Management Order by 9:00 a.m. on May 8, 2017, the morning of trial.
The Plaintiff also requested she be accommodated during the trial by being allowed to use some sort of cardboard podium so that she could stand during much of the proceedings. Despite the Plaintiff not having produced any medical evidence regarding the need for such an accommodation, the Court agreed to allow the Plaintiff to stand and to use some sort of podium. The Court offered Plaintiff various options available in the courthouse to accommodate the Plaintiff's asserted need. The Plaintiff rejected all of the accommodations the Court offered and insisted upon the use of the aforementioned cardboard podium. The Court advised the Plaintiff that if she wished to use the cardboard podium that she needed to email photographs of it to the Court that afternoon, in order to allow the Court to determine if the device could pass through security and be used in the courtroom. Despite the Court's clear instructions and directions regarding all of the above, the Plaintiff did not provide anything to the Court or the Defendants, or make any effort to comply with the Case Management Order deadlines as extended by the Court.
At 7:36 a.m. of the morning of trial, the Plaintiff emailed a member of the Clerk's Office staff a motion entitled "Emergency Motion for Continuance" (hereinafter "Fourth Motion to Continue"). [Doc. 105].
On Monday, May 8, 2017, at 9:01 a.m., the matter was called for trial and the Plaintiff failed to appear in Court to prosecute her action. In light of Plaintiff's Fourth Motion to Continue, the Court released the jury pool to an early lunch to see if Plaintiff would appear and withheld ruling on the motion. In the interim, the Defendants' objected to the Plaintiff's motion to continue and filed their Motion to Dismiss for Failure to Prosecute pursuant to Federal Rule of Civil Procedure 41(b). [Doc. 107]. The Court received no further communications or documentation from the Plaintiff, and at no time did Plaintiff appear to prosecute her action or advocate her motion. The documents Plaintiff subsequently filed with the Court showed no medical condition that prohibited her appearance. Upon resumption of the matter after the lunch break, the Court made inquiries of Defendants' counsel and was informed that Plaintiff had not made any further communications with Defendants' counsel and that Plaintiff had also failed to provide or exchange any materials as directed by the Court over the prior weekend or the morning of trial. The Court then proceeded to address the Plaintiff's motion to continue and the Defendants' motion to dismiss, making lengthy findings on the record.
With regard to Plaintiff's Fourth Motion to Continue, the Court addressed each asserted ground in the Plaintiff's motion. The Plaintiff asserted as follows in her motion:
[Doc. 105].
With regard to the Plaintiff's claims that she exceeded her medical restrictions and exacerbated her physical injuries in preparing for trial (paragraphs 1, 3, 6, 7, and 8 of the Plaintiff's motion), the Court found that the medical records referenced in the motion pertained to treatment she received from 2011 to 2014 and therefore did not address the Plaintiff's present medical condition. The Court further found that Plaintiff had failed to present any documentation or evidence that supported her claims of current physical incapacity, and that she had never before raised her alleged physical incapacity as a grounds for continuing the trial despite having made multiple motions to continue in the past. Noting that the Plaintiff's stated reason for not being able to appear for trial was her claimed need to seek treatment at an urgent care facility, the Court noted that the Plaintiff had made no mention of any kind of condition or medical diagnosis that required emergency evaluation or treatment. Therefore, the Court found the Plaintiff had failed to present any basis from which the Court could find that the Plaintiff presently had any type of medical condition that would prevent her from being present for trial.
With regard to the Plaintiff's claims that "forcing" her to trial constituted "cruel or unusual punishment" that would result in "severe" harm to her (paragraphs 2, 4, and 5 of the Plaintiff's motion), the Court noted its long-standing policy on setting trial dates well in advance and its expectation that deadlines set forth in the Case Management Orders would be followed accordingly. The Court noted that this policy allows for greater efficiency of the docket and ensures the progress of litigation. While acknowledging that motions to continue are generally disfavored, the Court noted that it will always entertain motions to continue which provide a legitimate basis for a continuance.
With regard to the Plaintiff's claims of misconduct by the Defendants (paragraphs 9 and 10 of the Plaintiff's motion), the Court found that even if such allegations were true, the Defendants' misconduct did not justify any lack of preparedness on the part of the Plaintiff and therefore did not warrant a continuance of the trial. As to the Plaintiff's bare assertion that her "NEW" printer had "mysteriously" broken, the Court found that the Plaintiff had presented nothing to show that there had been any failure of her printer or what may have been "mysterious" regarding any such failure. As for Plaintiff's assertion that printer failures "always and only [occur] before an important court date," the Court noted that Plaintiff had provided no support for this, nor had she previously complained of such. Indeed, the Court remains unclear as to what assertion the Plaintiff was attempting to make with regard to her printer, except that she seems to imply that its failure is somehow the Defendants' fault.
Lastly, having made the above findings in regard to each of Plaintiff's assertions, the Court found that the parties had been directed to appear for trial, and while the Defendants' counsel and corporate representatives were present, the Plaintiff had not appeared. The Court further found that court had been in session through the morning and reconvened after a lunch break at 1:30 p.m., but that at no time during that period did the Plaintiff appear or attempt to contact the Court in order to further advocate her motion or prosecute her case. Accordingly, the Court found that there was no basis to grant the Plaintiff's Fourth Motion to Continue and therefore denied the motion.
Having disposed of Plaintiff's Fourth Motion to Continue, the Court proceeded to address the Defendants' motion to dismiss and made lengthy findings pertinent to the factors under Federal Rule of Civil Procedure 41(b). Specifically, the Court found that the Plaintiff had missed the deadlines under the Case Management Order for: designations of deposition excerpts for use at trial, the filing of motions in limine and other evidentiary motions, and the exchange of exhibits and exhibits list, despite multiple extensions to these deadlines. The Court also found that the Plaintiff had not followed the Court's directions with regard to the deposition designations from another case, alleged recordings of conversations, or the request for accommodations.
The Court also noted that it had previously encouraged the Plaintiff at the summary judgment hearing of this matter to seek counsel because Plaintiff's preparation was clearly inadequate to be able to move forward with her case at trial. Indeed, at the summary judgment hearing in March 2017, the Court had admonished Plaintiff to prepare in earnest for the trial or find counsel, but there had been no evidence that the Plaintiff had made any serious effort to prepare for the trial in the several weeks since that hearing. The Court noted that despite the denial of multiple motions to continue, the Plaintiff made no discernable progress in preparing for trial.
The Court also found that the Plaintiff continued to assert and make allegations that the Defendants have committed various types of misconduct, (which in the Plaintiff's mind apparently absolved her from the need to prepare for trial) without presenting any evidence to support these allegations. The Court found that Plaintiff had been able to spend substantial time and effort preparing and advocating multiple motions to continue but seemed to be unable to expend the same effort towards preparing arguments and documents for the Court's final pretrial conference. In fact, the one filing the Plaintiff made by the deadline set forth in the Case Management Order, namely her witness list, was prepared at the direction of the Court during a break at the May 5, 2017, hearing on one of the Plaintiff's motions to continue.
With regard to the Defendants, the Court found the Defendants' counsel had met all deadlines as called for in the Case Management Order and appeared with the Defendants' corporate representatives on May 8, 2017, ready to proceed for trial. Furthermore, the Defendants brought witnesses for the trial, including witnesses who had flown in from the state of Florida and were present in the courtroom and prepared to testify at trial.
Upon making the above lengthy findings at the hearing, the Court proceeded to consider the factors under Rule 41(b), ruling that each factor weighed against the Plaintiff and in favor of the Defendants. The Court therefore granted the Defendants' motion to dismiss. The Court then summoned the jury pool that was called and assembled at the courthouse for the purpose of this trial and discharged them from further duty.
While the Court orally granted the Defendants' motion to dismiss, the Court withheld determination of whether the dismissal was to be with or without prejudice. The Court directed the parties that they would be allowed to submit briefs regarding the characterization of the dismissal. [Minute Order dated May 8, 2017]. The Court instructed that the briefs were to be submitted by the Defendants by May 19, 2017 and the Plaintiff by May 26, 2017, and after reviewing the submitted arguments, the Court would then enter a written order disposing of whether the dismissal would be with or without prejudice. [
On May 19, 2017, the Defendants timely filed their Memorandum of Law in Support of Characterizing the Prior Dismissal of Plaintiff's Complaint as "With Prejudice." [Doc. 109]. On May 30, 2017, the Plaintiff made three simultaneous filings entitled: "Plaintiff's Motion to Vacate Court's Order Of 5.8.17 Denying Plaintiff's Request for a Continuance And then, Grant a Continuance" [Doc. 110]; "Plaintiff's Motion to Vacate Court's Order Of 5.8.17 To Dismiss Plaintiff's Case On Grounds that Defendants Committed Fraud upon the Court" [Doc. 111]; and "Plaintiff's Response to Martin K. Reidinger's 5.8.2017 Order to Submit a Brief On Whether His Dismissal of Plaintiff's Case Should be With Or Without Prejudice." [Doc. 112]. On June 13, 2017, the Defendants filed their responses and reply to Plaintiff's filings. [Docs. 113, 114, 115]. There have been no replies filed by the Plaintiff.
Having been fully briefed by the parties, this matter is now ripe for disposition.
Federal Rule of Civil Procedure 41(b) states:
Fed. R. Civ. P. 41(b).
When dismissing an action pursuant to Rule 41(b), the Court should consider four factors in determining whether that dismissal should be with prejudice: (1) the personal responsibility of the plaintiff; (2) the prejudice to the defendant; (3) a history of deliberately proceeding in a dilatory manner; and (4) the availability of any less drastic remedy.
The Court granted the Defendants' Motion to Dismiss for Failure to Prosecute [Doc. 107] and directed the parties to submit briefs on the issue of whether the dismissal of this matter should be characterized as with or without prejudice. In addition, the Court also made lengthy findings on the record that remain applicable in the determination of this matter in light of the parties' arguments, the Plaintiff's motions, and the history of this proceeding as previously described.
The Plaintiff was personally responsible for the preparation of her case as she chose to proceed pro se. The Case Management Order and the numerous admonitions by the Court make clear that Plaintiff was well aware of her responsibilities in this proceeding. The Plaintiff made no serious effort to secure counsel despite having been warned well in advance how difficult the trial preparation would be. The Plaintiff also made no serious effort to prepare for the trial of this matter thereafter. Clearly, all of the Plaintiff's failures throughout this entire matter are the personal responsibility of the Plaintiff. This is particularly true considering the Plaintiff, although proceeding pro se, had demonstrated before the trial date her ability to file pleadings, motions, objections, responses, and replies. [
The Plaintiff's filings subsequent to the dismissal of her action have further shown that Plaintiff attempts to absolve herself of responsibility by disparaging the Defendants and the Court. [
[Doc. 112 at ¶ 23].
Therefore, Plaintiff's personal responsibility for failing to comply with the Court's orders weighs heavily in favor of dismissing this matter with prejudice.
The Defendants incurred substantial costs in preparing for trial, as well as addressing all of the issues arising from Plaintiff's multiple motions to continue and her failure to comply with the Court's orders leading up to the trial date. Despite the numerous last minute hearings, and Plaintiff's lack of compliance with the mandatory deadlines, the Defendants met all deadlines as called for in the Case Management Order and appeared on May 8, 2017, ready to proceed with the trial. Furthermore, the Defendants brought several witnesses for the trial, including witnesses who had flown in from Florida and were present in the courtroom and prepared to testify at trial.
Therefore, the factor regarding the prejudice incurred by the Defendants weighs heavily in favor of dismissing this matter with prejudice.
The Plaintiff has exhibited an extensive history of deliberately proceeding in a dilatory fashion. As described in detail above, the Plaintiff repeatedly failed to comply with the Court's deadlines and even when she was shown leniency and those deadlines were extended, she failed to comply with the directives of the Court. The Plaintiff's actions throughout this case and her multiple failures to comply with even the most basic deadlines, make clear that the Plaintiff had no intention of proceeding to the trial on the May 8, 2017 trial date, despite Plaintiff's knowledge of the trial date for almost a year, the denial of multiple motions to continue, and the repeated admonitions by the Court to prepare for trial.
The Plaintiff has a history of ignoring the Court's authority to set deadlines in this matter, including the trial date, and would justify her disregard by making completely unsupported allegations. For example, in Plaintiff's Third Motion to Continue she asserted:
[Doc. 101 at ¶ 10].
The Plaintiff's last-minute filing of her Fourth Motion to Continue was merely another chapter in the Plaintiff's pattern of deliberately proceeding in a dilatory and obstructive manner. The medical records submitted by the Plaintiff subsequent to her Fourth Motion to Continue (including her visit to urgent care the morning of the trial) show that the Plaintiff was not faced with an emergency and the records themselves fail to reflect any restrictions that would have hindered the Plaintiff from appearing on the day of trial. Despite Plaintiff's apparent ability to have come to Court on the day of trial, she made no efforts to appear and did not even attempt any further communications with the Court after having merely left a voicemail on the chambers telephone some 51 minutes before the case was to be called for trial. Further, despite the Plaintiff's claims in her Fourth Motion to Continue to have worked on preparing her case for the trial date, she has still failed to provide the Court any documentation or exhibits that indicate her asserted preparation for trial. Instead, the Plaintiff makes bold statements and allegations without presentation of any support, and expects the Court to simply acquiesce in order to allow the Plaintiff to prolong this matter and proceed at her leisure.
It is also noted that the Court summoned a jury pool for the trial of this matter, and those citizens appeared on May 8, 2017, in order to discharge their civic duty. These members of our community were greatly inconvenienced by the Plaintiff's antics, and the taxpayers incurred a substantial expense.
Therefore, the Plaintiff's history of proceeding in a dilatory manner weighs heavily in favor of dismissing this matter with prejudice.
This action was not dismissed as a sanction for the Plaintiff's misconduct.
The Court "may take sanctions of a less drastic nature, such as payment of costs, attorneys' fees, or dismissal without prejudice."
The Court considers first the option of dismissing the case without prejudice and taxing the costs and fees against the Plaintiff. In this case, particularly in light of the Plaintiff's representations as to her own financial condition, assessing costs and fees against the Plaintiff would be a futile act. In fact, given Plaintiff's claimed financial condition, entering a substantial judgment against Plaintiff for costs and attorney fees is arguably a harsher sanction than dismissal with prejudice.
The Court needs to control its docket, to not only move cases forward to conclusion but also to manage the docket in a manner that does not disadvantage any party or parties in other cases. The Court, in an effort to move this matter forward, afforded the Plaintiff extraordinary leniency throughout this matter but the Plaintiff made no serious effort to comply with the directives and orders of the Court. There is no reason to believe Plaintiff would conduct herself any differently or prepare her case any more expeditiously were this matter to be dismissed without prejudice. Moreover, there is no reason to believe that the Plaintiff would not again disrupt the docket by making frivolous filings, bold and defamatory accusations, and baseless motions to continue. This is particularly true in light of Plaintiff's various assertions contained in her subsequent filings in response to the dismissal of her case, such as:
[Doc. 110 at ¶ 19].
[Doc. 112 at ¶ 16]. Given Plaintiff's willful disregard of the Court's orders and their purpose, there is little reason to believe any available conclusion other than a dismissal with prejudice would be appropriate. The Court has considered a lesser remedy of dismissing the Plaintiff's matter without prejudice. However, the history of this matter demonstrates that the Plaintiff has no regard for the authority of the Court, and dismissing this matter without prejudice would be ineffective and empower the Plaintiff to further undermine the Court's authority.
Therefore, the lack of any viable alternative remedy weighs heavily in favor of dismissing this matter with prejudice.
Accordingly, in light of all of the factors under Rule 41(b), the Court concludes that this matter should be dismissed with prejudice.
The Plaintiff filed two motions simultaneously with her brief addressing the question of the nature of the dismissal. The Plaintiff's motions are entitled "Motion to Vacate Court's Order Of 5.8.17 Denying Plaintiff's Request for a Continuance And then, Grant a Continuance" and "Motion to Vacate Court's Order Of 5.8.17 To Dismiss Plaintiff's Case On Grounds that Defendants Committed Fraud upon the Court." [Docs. 110, 111].
The Plaintiff's motions make the same familiar assertions that have been prevalent throughout Plaintiff's filings in this matter and continue the pattern of making these bold accusations without presenting any support therefor.
Upon review of the Plaintiff's motions, the Court determines they are without merit. For the reasons previously stated, the Plaintiff has shown no good cause for a continuance and the Plaintiff has presented no evidence of any fraud perpetrated by the Defendants upon the Court. Accordingly, the Plaintiff's motions are denied.
