The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER FOLLOWING ORDER TO SHOW CAUSE HEARING AND IMPOSING SANCTIONS FOR FAILURE TO ATTEND MANDATORY SETTLEMENT CONFERENCE
The court held an Order to Show Causehearing for why sanctions, up to and including terminating sanctions, should not be imposed against plaintiff Katherine Avilla Owen, for her failure to appear at the court-ordered Mandatory Settlement Conference (MSC), and for why this action should not be dismissed for failure to prosecute. For the following reasons, the court imposes sanctions against Ms. Owen in the form of awarding defendant County of Imperial its reasonable expenses incurred in attending the MSC. The court addresses the issues of terminating sanctions and failure to prosecute in a report and recommendation to the district judge issued contemporaneously with this order.
Plaintiff sues Defendant for battery, negligence and violation of the Americans with Disabilities Act of 1990. The claims arise from events stemming from Plaintiff's arrest by Defendant for an outstanding warrant based on excessive and harassing 911 telephone calls to Defendant. Defendant denies it mistreated Plaintiff in any way during the arrest or while she was in custody.
This court issued a Scheduling Order that set a MSC with all parties for November 17, 2009.
Plaintiff Katherine Owen did not appear at the MSC. Defendant's attorney Michael Pérez, and a client representative from the County of Imperial, appeared at the MSC. After waiting for some time for Ms. Owen to appear, the court recorded her non-appearance on the record.
On November 18, 2009, the court set the hearing date of January 12, 2010 for an Order to Show Cause hearing (OSC) and a hearing for Defendant's motion for terminating sanctions. The court asked Defendant to "include a declaration of costs incurred for Defendant and Defendant's counsel to appear at the . . . MSC." OSC Order, p.2 [Doc. No. 20]. On December 15, 2009, Plaintiff filed a request to extend the time for her to file a response. She said that she was recovering from major surgery and needed additional time to recover before responding to the OSC and the motion. The court granted the request and reset the OSC and motion hearing to January 26, 2010. Then, on January 12, 2010--the day her response and opposition were due--Plaintiff filed a second request for extension of time to respond based on further medical complications. The court granted the request and reset the OSC and hearing for the motion for terminating sanctions to March 2, 2010. The court noted it would not grant Plaintiff any further requests to continue the hearings absent extraordinary circumstances.
On February 16, 2010, Plaintiff filed a third motion for an extension of time to file a response to the OSC and the motion for terminating sanctions. She also simultaneously filed a motion for recusal of Judge Stormes. In her request for extension, Plaintiff cited to multiple health issues and work conflicts. The court found good cause to grant the third request for extension. It reset the hearing date to March 23, 2010 for the OSC and motion for terminating sanctions. The court also set March 23rd as the hearing date for Plaintiff's motion for recusal.
On February 9, 2009, this court issued a scheduling order that set a MSC with all parties for November 17, 2009. Plaintiff did not appear at the MSC. Defendant seeks to compel Plaintiff to pay its reasonable legal fees and travel costs incurred to attend the court-ordered MSC on November 17, 2009, as well as the costs for bringing the motion for terminating sanctions. Plaintiff says she was not aware of the MSC because she did not receive the February 2009 scheduling order in the mail. She also argues she had no expectation there would be future settlement conferences because on December 11, 2008, the court had terminated a voluntary settlement conference that had been set for December 12, 2008.
Courts have the power to sanction parties for not attending court-ordered conferences:
[T]he court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate--or does not participate in good faith--in the conference; or (C) fails to obey a scheduling or other pretrial order.
Fed. R. Civ. Proc. 16(f)(1). When imposing a sanction under Rule 16(f)(1), Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses--including attorney's fees--incurred because of any non-compliance with this rule, unless the noncompliance ...