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Ortiz v. Astrue


August 6, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


On August 5, 2010, the undersigned conducted a hearing regarding the previously issued Order to Appear (Dkt. No. 20), which relates to the representation of plaintiff in this matter by attorney Bess M. Brewer, of the law firm Bess M. Brewer & Associates. Ms. Brewer appeared as required by the Order to Appear. Assistant United States Attorney Bobbie J. Montoya appeared on behalf of defendant.

The principal issue before the court is whether Ms. Brewer and/or plaintiff should be sanctioned in this matter for Ms. Brewer's repeated failures to comply with the court's orders, which include the court's scheduling order, a previously entered order approving a stipulation to grant plaintiff an extension of time to file a motion for summary judgment, and the order requiring plaintiff to show cause (the "OSC") that gave rise to the Order to Appear and the present hearing. For the reasons that follow, the undersigned will not impose sanctions, although the imposition of monetary sanctions on Ms. Brewer personally would be appropriate under the circumstances.*fn1 However, as discussed below and at the hearing, Ms. Brewer should understand that her future failures to comply with the court's orders in this case or other cases before the undersigned*fn2 will not be treated with the same patience afforded in this case absent a showing of extraordinary cause to do so. And although the undersigned cannot speak for any of the other judges of this court, it would behoove Ms. Brewer to heed the admonitions provided herein in other cases that she is prosecuting before this court.

Some background is necessary to put Ms. Brewer's conduct in context. Plaintiff filed a complaint and motion to proceed in this action in forma pauperis on September 21, 2009. (Dkt. Nos. 1, 2.) This court granted plaintiff's motion to proceed in forma pauperis (Dkt. No. 3) and issued a scheduling order setting forth, among other things, a deadline by which defendant was required to file the administrative transcript and an answer or other response to plaintiff's complaint, and a deadline by which plaintiff was required to file a motion for summary judgment and/or remand. (Dkt. No. 4.) The scheduling order further provides: "The court will not contact counsel or the parties to remind them of these scheduling deadlines. Failure to adhere to the schedule outlined above may result in sanctions, including dismissal. L.R. 11--110. Plaintiff has an affirmative duty to prosecute this action, and failure to do so may result in dismissal for lack of prosecution. Fed. R. Civ. P. 41(b)." (Dkt. No. 4 at 4.)

On March 8, 2010, defendant lodged the administrative transcript with the court and filed an answer to plaintiff's complaint. (Dkt. Nos. 12, 13.)

On April 27, 2010, the court approved the parties' stipulation permitting plaintiff to file a motion for summary judgment on or before May 28, 2010. (Dkt. No. 17.) Despite this extension, plaintiff failed to file a timely motion for summary judgment.

On June 15, 2010, the court entered an order ("OSC") requiring plaintiff to "show cause in writing, on or before July 2, 2010, why this case should not be dismissed for lack of prosecution and why plaintiff's counsel should not be sanctioned by the court for failure to adhere to the court's Local Rules and the orders entered in this case." (Dkt. No. 18 at 2.) The OSC specifically stated that "[f]ailure by plaintiff and plaintiff's attorney to file the required writing within the time provided will result in dismissal of this action," and that "[i]t will not be sufficient for plaintiff to merely file a late motion for summary judgment; the required writing must be filed." (Id.) The OSC also stated: "Plaintiff's counsel shall serve this order on her client, Ms. Ortiz, within fourteen days of the date of this order, and shall file written notice with the court within fourteen days of that service that she has actually served this order on Ms. Ortiz." (Id. at 3.)

On July 2, 2010, Ms. Brewer filed a motion for summary judgment on plaintiff's behalf. (Dkt. No. 19.) Despite the court's express warning that it would "not be sufficient for plaintiff to merely file a late motion for summary judgment" and that "the required writing must be filed," Ms. Brewer failed to file the required writing. Ms. Brewer also failed to timely file a notice with the court indicating that she had served her client with the OSC.

On July 15, 2010, the undersigned issued an Order to Appear, which ordered Ms. Brewer to appear in person on August 5, 2010. That order noted that Ms. Brewer's failure to file a response to the OSC and the notice regarding service of the OSC on her client constituted additional violations of the court's orders and were grounds for the imposition of sanctions, including monetary sanctions and dismissal of plaintiff's case pursuant to Federal Rule of Civil Procedure 41(b).*fn3 The Order to Appear also required Ms. Brewer to serve the OSC and the Order to Appear on her client.

On July 15, 2010, Ms. Brewer filed a notice with the court, which stated that she had provided her client with the court's orders. However, Ms. Brewer still has not filed the writing required by the court's June 15, 2010 OSC.

At the hearing, the undersigned provided Ms. Brewer with an additional opportunity to explain or justify her repeated and ongoing failures to comply with the court's orders and meet the filing deadlines therein. Ms. Brewer repeatedly apologized to the court for her transgressions and explained that she could not adequately justify her conduct in this case and in other cases. She explained that she has had great difficulty managing her law practice over the last year, which stem largely from personnel issues and taking on too many representations. Ms. Brewer assured the court that, contrary to appearances, she is taking steps to remedy these problems and that things are "getting better." The undersigned surely hopes this is the case, not only to alleviate the court's frustration, but, more importantly, to ensure that Ms. Brewer's clients receive adequate representation. On this note, the undersigned encouraged Ms. Brewer to immediately review all of the filing deadlines in all of her cases before this court in an effort to meet applicable filing deadlines and, where meeting such deadlines might not be possible, seek appropriate extensions of time.

The undersigned concludes that imposing a monetary sanction on Ms. Brewer would not be appropriate at this time. Ms. Brewer was contrite, and the undersigned believes that Ms. Brewer's intentions and apologies are genuine. In the undersigned's brief exposure to her work product, Ms. Brewer has demonstrated that she is a strong advocate for clients, who often have few other options in pursuing their Social Security Act benefits claims. The problem to this point has been one of case management on Ms. Brewer's part. The undersigned hopes that Ms. Brewer is able to, as she stated at the hearing, get to "even keel." In light of Ms. Brewer's contrition and assurances that she is attempting to right her ship, the undersigned concludes that this order serves as an appropriate sanction and that the imposition of monetary sanctions is not presently warranted. However, the undersigned warned Ms. Brewer at the hearing, and does so again in this order, that her future failures to comply with the court's orders will result in the imposition of sanctions, monetary or otherwise, and those sanctions will be significant in the first instance.*fn4

Accordingly, IT IS HEREBY ORDERED that:

1. The OSC entered June 15, 2010 is discharged.

2. Plaintiff's motion for summary judgment is deemed timely filed.

3. The Commissioner's responsive brief and/or cross-motion for summary judgment remains due on or before September 1, 2010.


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