United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
has now twice failed to timely appear for a settlement
conference before the undersigned, resulting in a significant
waste of time and resources for defendants' counsel and
the court. It appears that plaintiff is not seriously
interested in prosecuting his case or complying with court
orders. Accordingly, the undersigned recommends that the
action be dismissed with prejudice pursuant to Federal Rule
of Civil Procedure 41(b).
December 7, 2015 order, the assigned judge, Judge Brennan,
scheduled a settlement conference in this case for February
23, 2016, at 9:00 a.m., in Courtroom No. 25 before the
undersigned. (ECF No. 18.) The order specifically cautioned
that the "failure of any counsel, party or authorized
person subject to this order to appear in person may result
in the imposition of sanctions." (Id.)
February 23, 2016 settlement conference, attorney Gary
Brickwood appeared on behalf of defendants, along with
assistant county counsel Jim Ross. Both of defendants'
representatives traveled over 150 miles from Redding to
Sacramento for the settlement conference. However, even
though the undersigned trailed the start of the settlement
conference by 30 minutes, plaintiff, who proceeds without
counsel, entirely failed to appear.
on February 25, 2016, the court issued an order to show
cause. (ECF No. 21.) In that order, the court acknowledged
that the December 7, 2015 order scheduling the settlement
conference was returned to the court as undeliverable.
Nevertheless, the court noted that it was also informed that
one of the court's administrators had obtained
plaintiff's new contact information through
plaintiff's probation officer, and was ultimately able to
speak to plaintiff and notify him regarding the date and time
of the settlement conference. Indeed, that communication
apparently prompted plaintiff to file a notice of change of
address on February 10, 2016. (ECF No. 19.) At the February
23, 2016 settlement conference, defendants' counsel also
advised the court that he had sent an additional notice of
the settlement conference to plaintiff's new address,
once the notice of change of address was filed. As such, it
appeared that plaintiff was well aware of the settlement
conference, but nonetheless failed to appear without
providing any notice to defendants' counsel or the court.
Thus, the court directed plaintiff to show cause, within
seven (7) days, why he should not be required to pay $250.00
in sanctions based on his failure to appear at the
court-ordered settlement conference. The court specifically
cautioned plaintiff that failure to respond to the order by
the required deadline may result in dismissal of the action
with prejudice pursuant to Federal Rule of Civil Procedure
plaintiff ultimately failed to respond to the order to show
cause by the required deadline, the undersigned issued
findings and recommendations for dismissal of the action
pursuant to Federal Rule of Civil Procedure 41(b) on March
10, 2016. (ECF No. 22.) Thereafter, on March 21, 2016,
plaintiff filed a notice apologizing for his absence at the
February 23, 2016 settlement conference, and requesting that
another settlement conference be scheduled. (ECF No. 23.) In
light of that filing and plaintiff's pro se
status, the court vacated the findings and recommendations
for dismissal and discharged the order to show cause on March
28, 2016, permitting another settlement conference to be
scheduled. (ECF No. 24.) However, the court cautioned
plaintiff that "if he again fails to appear for the
conference, substantial monetary sanctions and/or dismissal
of the action may result." (Id.)
April 5, 2016, the court issued a minute order setting
another settlement conference in this matter before the
undersigned on June 14, 2016, at 9:00 a.m., in Courtroom No.
25. (ECF No. 25.) The parties were directed to exchange, and
deliver to the court, settlement conference statements no
later than seven (7) days prior to the settlement conference.
(Id.) Although defendants submitted a timely
settlement conference statement, plaintiff failed to submit
any statement prior to the settlement conference or otherwise
communicate with the court.
14, 2016, the day of the second settlement conference,
plaintiff again failed to appear at 9:00 a.m. as ordered.
Defendants' representatives were in attendance, having
once again traveled over 150 miles from Redding to Sacramento
for the settlement conference. According to defendants'
counsel, his office staff had reached out to plaintiff on
June 9, 2016, to remind him about the settlement conference.
At that time, plaintiff apparently told defendants'
counsel that he had forgotten about the June 14, 2016
settlement conference, that he was homeless, and that he was
not sure how he would get to the conference. Nevertheless,
plaintiff never notified the court or defendants' counsel
that he would not be attending the settlement conference, nor
did he request a continuance of the settlement conference.
14, 2016, at 9:30 a.m., the court concluded that plaintiff
had failed to appear and went on the record cancelling the
settlement conference, releasing defense counsel and stating
that an order recommending dismissal of the case would be
forthcoming. However, at 9:40 a.m. the undersigned's
courtroom deputy clerk received a telephone call stating that
plaintiff had appeared, for reasons unknown, purportedly at
the Yolo County courthouse. Plaintiff was instructed to
forthwith travel to the federal courthouse in Sacramento. The
undersigned waited two hours but plaintiff again failed to
before noon, plaintiff arrived at the Sacramento federal
courthouse. At that time, plaintiff was informed by the
undersigned's courtroom deputy clerk that he should
appear before the undersigned at 1:15 p.m. However, when
plaintiff's matter was ultimately called at 1:15 p.m.,
plaintiff again failed to appear. Thereafter, around 1:30
p.m., officers at the security checkpoint advised the court
that plaintiff was on his way to the courtroom. On the
record, plaintiff was unable to give any plausible excuse for
his failure to timely appear at the settlement conference.
must weigh five factors in determining whether to dismiss a
case for failure to prosecute, failure to comply with a court
order, or failure to comply with a district court's local
rules. See, e.g., Ferdik v. Bonzelet, 963