The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on the assigned magistrate judge's findings and recommendations certifying facts for entry of an order (1) adjudging plaintiff Horst Ernest Wilhelm ("plaintiff") and his former counsel, John C. Torjesen ("Torjesen"), in contempt of court, (2) dismissing plaintiff's case as a sanction for discovery abuses and failure to comply with court orders, pursuant to Fed. R. Civ. P. 37 and (3) requiring plaintiff and/or Torjesen to pay defendant Horst Anton Wilhelm's ("defendant") attorneys' fees and costs in the amount of $2,824.13. The court held a hearing on the instant matter on July 24, 2009 in which plaintiff, plaintiff's current counsel, T. Troy Otus ("Otus"), Torjesen and defendant's counsel, Joseph Cooper,*fn1 appeared.
After consideration of the written submissions of the parties as well as the oral arguments made at the hearing, the court finds as follows: (1) Torjesen is adjudged in contempt of court, based on the facts and for the reasons more fully set forth in the magistrate judge's findings and recommendations of May 4, 2009 ("May 4 Order") (Docket #78); (2) however, because the court cannot find that plaintiff had actual knowledge of the relevant orders and has since complied with the subject discovery, the court does not find plaintiff in contempt of court and will not dismiss plaintiff's case as a terminating sanction, and (3) the court directs that the attorneys' fees and costs be paid solely by Torjesen, who has failed to provide any justification for his conduct in this case.
Plaintiff filed this action through former counsel Torjesen on January 28, 2008. It arose out of an automobile collision on January 31, 2007. The complaint names as defendants plaintiff's son, Horst Anton Wilhelm, and Samuel Yott.*fn2 Jurisdiction is based on diversity.
After plaintiff failed to respond to defendant Wilhelm's special interrogatories, request for production of documents, and request for admissions, defendant moved to compel plaintiff's responses. Plaintiff and Torjesen did not respond to the motion and did not appear at the hearing held on January 8, 2009. Torjesen did send an attorney to specially appear, however, since he was not attorney of record on the case, the magistrate judge did not permit him to be heard on the merits. Based on plaintiff's non-opposition to the motion, the motion was granted, and plaintiff was directed to respond to all discovery by January 16, 2009, as well as pay $700.00 in sanctions. Plaintiff was warned that failure to comply with the order would result in a recommendation that the case be dismissed. (Docket #58.) Plaintiff did not comply with the order.
Defendant Wilhelm next moved to compel plaintiff's deposition and moved for sanctions for plaintiff's discovery abuses. (Docket #29.) Plaintiff and defendant were ordered to file a joint statement five court days before the February 5, 2009 hearing. (Docket #56.) However, plaintiff did not comply with this order to participate in the joint statement, did not otherwise oppose the motion, and did not appear at the hearing. (Docket #67.)
In his order granting defendant's motion, the magistrate judge reminded plaintiff of his previous order wherein he advised plaintiff that the court would look unkindly on his failure to appear at his deposition. (Docket #69.) The magistrate judge's order, issued February 10, 2009, directed both plaintiff and Torjesen to personally appear for plaintiff's deposition in the jury room of the magistrate judge's courtroom and warned that failure to do so may be grounds for a finding of contempt. (Id.) Defendant's request for monetary sanctions was postponed until after the date for deposition had passed. (Id.)
Plaintiff and his counsel did not appear at the March 2, 2009 deposition. After reminding plaintiff of the previous warnings regarding dismissal, plaintiff and Torjesen were ordered to show cause why they should not be held in contempt for their failure to obey court orders. (Docket #71.) The magistrate judge directed them to file a declaration by March 19, 2009 and to appear at a March 26, 2009 hearing on the order to show cause. (Id.) Plaintiff and Torjesen did not file the requisite declaration and did not appear at the hearing. (Docket #73.) Also scheduled for hearing on that date was defendant's motion for sanctions.
On March 30, 2009, plaintiff substituted new counsel, Otus, for Torjesen.
Thereafter, on May 4, 2009, the magistrate judge issued findings and recommendations ruling on the order to show cause and defendant's motion for monetary and or evidentiary sanctions (the aforementioned, "May 4 Order"). Therein, the magistrate judge certified facts to this court for entry of an order finding plaintiff and Torjesen in contempt of court, dismissing plaintiff's case as a sanction for discovery abuses, and directing plaintiff and/or Torjesen to pay monetary sanctions in the amount of $2,824.13. The magistrate judge directed that the May 4 Order be personally served on plaintiff and Torjesen and that proof of service thereof be filed forthwith.*fn3
Said order and this court's subsequent orders resetting the hearing to July 24, 2009 have been personally served on plaintiff and Torjesen and proof of service thereof has been filed. (Docket #s 90-93.) Moreover, the court notes that the docket reflects that no previous orders served by the court on Torsejen, as plaintiff's counsel of record, were returned as undeliverable, and that the pertinent orders, described above, were served on Torjesen at two email addresses, pursuant to the local rules permitting electronic service of process. (Docket #s 56, 58, 69, 71.)
Following issuance of the May 4 Order and in anticipation of this court's July 24, 2009 hearing, plaintiff filed a declaration attesting to his lack of knowledge of the court's orders and his efforts to contact Torjesen during the relevant time, and plaintiff's current counsel, Otus, filed written objections to the Order as well as a declaration describing his efforts to contact Torjesen to facilitate the substitution of counsel. (Docket #s 81, 87, 88.) ...