Wells v. Gourmet Services Inc. et al (MAG+)

Filing 204

ORDERED that the motion (Doc. # 202 ) is DENIED. Signed by Chief Judge William Keith Watkins on 1/23/2018. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LAWRENCE WELLS,
Plaintiff,
v.
GOURMET SERVICES, INC., et al.,
Defendants.

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) CASE NO. 2:13-CV-516-WKW
) (WO)
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ORDER
Before the court is Plaintiff Lawrence Wells’s motion for reconsideration
(Doc. # 202), which the court construes as a motion for relief from judgment
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure.
Rule 60(b) of the Federal Rules of Civil Procedure provides that, “on motion
and just terms,” a party may obtain relief from a judgment or order for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under Rule
59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
The grounds for relief offered by Mr. Wells are not sufficient under Rule
60(b). Mr. Wells urges the court to consider his travel schedule and the fact that
he lives and works in a time zone eleven hours ahead of this court’s time zone. In
dismissing the case, the court did consider Mr. Wells’s travel schedule, as well as
the potential inconvenience posed by distance and the time difference, but the court
nevertheless concluded that Mr. Wells did not take reasonable efforts that were
available to him to enable his attorney to timely comply with the order to show
cause.

(Doc. # 196 at 12-13.)

Further, the court found that Mr. Wells’s

unrepentant pattern of willful, contumacious conduct indicated that sanctions less
than dismissal were unlikely to be effective in securing his compliance with court
orders in the future. (Doc. # 196 at 13-14.)
If anything, Mr. Wells’s motion and attached exhibits confirm the court’s
earlier findings underlying the order of dismissal.

The motion and exhibits

establish that Mr. Wells’s counsel emailed him on December 29, 2017 (within 24
hours of the issuance of the show cause order) to inform him that “this is a very
serious order” and that “[Mr. Wells] should not have disobeyed the [c]ourt’s prior
order and sent that [email] to the [c]ourt.” (Doc. # 202-3 at 1.) Counsel warned
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Mr. Wells that the court “is clearly leaning toward dismissing your case unless we
argue and prove” that Mr. Wells could pay monetary sanctions and “convince the
court that [Mr. Wells] will never disobey a court order again.” (Doc. # 202-3 at 1.)
In addition, counsel advised that he would be unable to file a timely response to the
show cause order if Mr. Wells did not provide the information necessary to comply
with the order, or if counsel was not convinced “that [Mr. Wells’s] agreement to
pay and not disobey [was] genuine.” (Doc. # 202-3 at 1.)
After counsel’s December 29, 2017 email, there followed a number of
emails between Mr. Wells and his counsel. Mr. Wells stated that he would be
homeless, unemployed, and on food stamps when he returned to the United States.
Mr. Wells also conveyed that he would be able to obtain a $1,000.00 advance on
his salary that he could offer the court in payment as a reasonable sanction. Mr.
Wells also noted that he would be travelling to the United States on the due date of
the show cause order. Counsel advised: “I see your ticket coming back on the 5th.
I still have to file a response by then.” (Doc. # 202-3.)
Communications between Mr. Wells and his counsel confirm that Mr. Wells
was aware of the seriousness of his conduct, the potential for sanctions (including
dismissal), and that Mr. Wells’s travel plans did not excuse compliance with the
show cause order. Those communications further confirm that, despite travel plans
and other inconveniences of Mr. Wells’s overseas location, he was able to

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communicate with his counsel about the show cause order, but chose not to do so
in a manner that would enable counsel to file a compliant response.
The court recognizes that Mr. Wells has presented new information showing
that he appears willing and able, at not insignificant sacrifice, to pay $1,000.00 in
monetary sanctions.1 However, the primary purpose of monetary sanctions in this
context is not to exact retribution, but to ensure future compliance with court
orders. See Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006) (noting that
dismissal under Rule 41(b) requires “a clear record of delay or willful conduct and
that lesser sanctions are inadequate to correct such conduct”).

Despite the

directives of the show cause order and counsel’s express request, neither Mr.
Wells’s motion nor his emails to his counsel provide reliable assurance that he will
never disobey another court order.

Instead, Mr. Wells insists that, despite

numerous prior court orders and warnings, his disobedience of—and disrespect
for—those orders and warnings should be excused because he wanted to present
the court with information his counsel had declined to file on his behalf. Mr.

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The new evidence regarding Mr. Wells’s ability to pay monetary sanctions is not
properly before the court because it could have been offered before the judgment of dismissal.
See Maradiaga v. United States, 679 F.3d 1286, 1294 (11th Cir. 2012) (“It is not an abuse of
discretion for the district court to deny a motion under Rule 60(b) when that motion is premised
upon an argument that the movant could have, but did not, advance before the district court
entered judgment.”). However, in light of Mr. Wells’s circumstances, the court has considered
that evidence.
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Wells’s excuse is not a valid justification for his disobedience.2 His insistence on
that insufficient excuse confirms that his attitude has not changed and that, even in
the face of sanctions less than dismissal, he is unlikely to comply with the court’s
orders in the future when he disagrees with them or finds them inconvenient.
This action cannot proceed to trial in a timely and efficient manner without
orderly procedure, which includes the parties’ compliance with court orders.
Sanctions less than dismissal provide no basis for assurance of Mr. Wells’s future
compliance. Dismissal was, and continues to be, the appropriate sanction.
Accordingly, it is ORDERED that the motion (Doc. # 202) is DENIED.
DONE this 23rd day of January, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

2

The court notes the following: (1) Mr. Wells has previously been informed of how to
file documents pro se and, in fact, has complied with those requirements on numerous occasions
when proceeding pro se (Doc. # 18 (warning of sanctions for noncompliance)); (2) Mr. Wells
has been warned on numerous occasions not to attempt to communicate with the court by email;
and (3) Mr. Wells was specifically warned that, to ensure the orderly disposition of the case, he
could be subjected to sanctions if he filed motions or otherwise attempted to appear pro se except
“by prior leave of court upon a showing of good cause.” (Doc. # 185.) Accordingly, even if Mr.
Wells was of the opinion that he needed to present something to the court pro se despite being
represented by counsel, he was not foreclosed from doing so in accordance with the court’s
orders. Rather than complying with those orders, Mr. Wells chose to violate them. He continues
to fail to offer good cause for doing so.
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