The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE (Docket No. 125) ORDER DENYING PLAINTIFF'S MOTION REQUESTING LEAVE OF COURT TO ENGAGE IN SETTLEMENT DISCUSSIONS BEFORE THE TRIAL DATE IS SET (Docket No. 123) ORDER SETTING PRE-TRIAL CONFERENCE AND TRIAL DATES ORDER REQUIRING DEFENDANTS TO FILE A STATUS UPDATE RE: WILLINGNESS TO PARTICIPATE IN SETTLEMENT CONFERENCE
On June 26, 2012, the Court issued an order denying in part Defendants' motion for summary judgment, finding that there were material facts in dispute as to Plaintiff's claims for arrest without probable cause and excessive force. (Doc. 122.) The Court ordered the parties to "contact the Magistrate Judge within 30 days of service of this order for the purpose of setting a pre-trial conference date and a trial date." (Doc. 122, 18:17-18.)
On July 26, 2012, Plaintiff filed a "Motion and Request to Seek Leave of the Court to Potentially Resolve and/or Settle with the Defendants Without Issuing a Full Trial in Conjunction With Reasonable Attempts to Obtain Counsel" and an "Acknowledgment of Order on Summary Judgment and Contact as Requested by the Trial Court for the Purposes of Setting Pre-Trial Conference and Trial Date." (Docs. 123, 124.) Plaintiff acknowledged that the Court's June 26, 2012, order denying in part Defendants' motion for summary judgment required the parties to contact the Court to set the pre-trial conference and trial dates, and indicated that he was seeking leave of the Court to resolve and/or settle the case with Defendants without the issuance of a full trial schedule. (Docs. 123, 124.)
On August 10, 2012, the Court issued an Order to Show Cause as to why Defendants' counsel should not be sanctioned for failing to comply with the June 26, 2012, Court order requiring Defendants to contact the Court regarding dates for the pre-trial conference and trial. (Doc. 125.) Defendants were also ordered to file a status report proposing those dates and indicating whether they believe, in good faith, that a settlement is a possibility in this action and whether they were interested in participating in a settlement conference. (Doc. 125.)
On August 13, 2012, Defendants filed the Declaration of Gregory L. Myers, the Declaration of Lisa M. Piatt, and a Status Report in response to the Court's Order to Show Cause. (Docs. 126, 128, 130.)
Accordingly, the Court DISCHARGES the Order to Show Cause, DENIES Plaintiff's request that a trial date not be set at this time, SETS the pre-trial conference and trial dates, and ORDERS Defendants to file a status update by no later than September 12, 2012, indicating whether they are interested in participating in a settlement conference.
A. Order Discharging Order to Show Cause
On June 26, 2012, Chief District Judge Anthony W. Ishii denied in part Defendants' motion for summary judgment and further ordered that "[t]he parties shall contact the Magistrate Judge within 30 days of service of this order for the purpose of setting a pre-trial conference date and a trial date." (Doc. 122, 18:17-18.) Plaintiff, who is currently incarcerated and is appearing pro se, contacted the Court as ordered. (Docs. 123, 124.) Defendants, however, failed to file any information on the docket and did not directly contact the Magistrate Judge assigned to this case; thus, it appeared that Defendants had failed to contact the Court.
On August 13, 2012, Defendants filed the Declaration of Gregory L.
Myers, Defendant's counsel, and the Declaration of Lisa M. Piatt, Mr.
Bradley's secretary. (Docs. 126, 128.) Ms. Piatt declares that on July
26, 2012, she contacted the assistant for Magistrate Judge Gary S.
Austin via e-mail and proposed dates for the pre-trial conference and
the trial. (Doc. 128, 1:20-26.) It is unclear why Magistrate Judge
Austin's staff was contacted, since this action was reassigned from
Magistrate Judge Austin to Magistrate Judge Sheila K. Oberto over two
years prior on April 14, 2010. (Doc. 55.) Ms. Piatt declares that she
was informed that the case was assigned to Judge Oberto and that the
proposed dates would be forwarded to Judge Oberto's staff. (Doc. 128,
2:1-4.) Ms. Piatt does not indicate that she followed up with Judge
Oberto's staff regarding scheduling in this action.*fn1
(See Doc. 128.) Further, Defendants filed nothing; thus, the
docket does not reflect Defendants' efforts to comply with Chief
District Judge Ishii's June 26, 2012, Order.*fn2 As
Defendants did not contact Judge Oberto's chambers directly to propose dates as required in the Court's June 26, 2012, Order, and a review of the docket did not establish that Defendants made any contact with the Court.
Nonetheless, as it appears that Defendant's counsel did, in fact, contact a Magistrate Judge to propose dates, albeit the wrong Magistrate Judge, the Court DISCHARGES the Order to Show Cause.
B. Order Denying Plaintiff's Motion Requesting Leave of Court to Engage in Settlement Discussions Before a Trial Date is Set On July 26, 2012, Plaintiff filed a ...