Conner v. Griego et al
Filing
145
ORDER AND OPINION [Re: Order at Docket 143] that plaintiff's remaining claims are DISMISSED with prejudice for failing to comply with the orders at dockets 118 and 143. The final pre-trial conference and trial set for 4/23/12, are hereby VACATED. Signed by Judge John W Sedwick on 3/30/12. (TLJ)
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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DEMONT R.D. CONNER,
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Plaintiff,
vs.
BENJAMIN GRIEGO, et al.,
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Defendants.
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2:08-cv-01795 JWS
ORDER AND OPINION
[Re: Order at Docket 143 ]
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I. MATTER PRESENTED
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At docket 138, defendants Ben Griego and Frank Garcia (“defendants”) move to
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dismiss the case for failure to prosecute and for failure to comply with pretrial deadlines.
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At docket 143, the court ordered pro se plaintiff DeMont R.D. Conner (“Mr. Conner” or
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“plaintiff”) to show cause why his remaining claims should not be dismissed for failure to
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file a witness list. In that order, the court also directed plaintiff to respond to defendants’
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motion to dismiss. At docket 144, Mr. Conner responds to defendants’ motion.
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II. DISCUSSION
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In the order at docket 118, the court ordered the parties to submit final, revised
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witness lists by February 13, 2012.1 The court directed the parties to read the order in
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its entirety. On page 3 of the order, the court stated that “[t]his final witness list will
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disclose those witnesses whom the party will in fact call at trial.”2 The court went on to
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emphasize that “[o]nly those witnesses so listed will be permitted to testify at trial.”3
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On February 13, 2012, defendants timely filed a final, revised witness list.
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Mr. Conner still has not filed a witness list. In the order at docket 143, the court noted
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the requirements of the final pretrial order, and specifically, the requirement that each
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party file a final witness list. Pursuant to the order at docket 118, the court warned
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again that Mr. Conner’s failure to file a witness list would “leave[] him without the ability
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to call any witness in support of his case.”4 Consequently, the court ordered Mr. Conner
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to show cause why his claims should not be dismissed.
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In his response to defendants’ motion to dismiss, Mr. Conner maintains that the
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court “continues to carry the banner for the Defendants, by threatening Plaintiff with
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dismissal.”5 Regardless of whether Mr. Conner perceived the order at docket 143 as a
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threat, the fact is that without testifying witnesses, Mr. Conner will be unable to make a
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case. That fact is not altered by Mr. Conner’s stipulation “to all . . . evidence and [the]
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witness list that the Defendants have offered.”6 Contrary to Mr. Conner’s contention that
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Doc. 118 at 1, 3.
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Id. at 3.
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Id. (emphasis added).
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Doc. 143 at 2.
Doc. 144 at 2.
Id. at 4.
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“adherence to th[e] court’s order would be frivolous and a waste of time,”7 compliance
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with the order would have allowed plaintiff to call witnesses in support of his case. The
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court made that abundantly clear.
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Nonetheless, Mr. Conner elected to disregard another court order and did not
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attempt to show cause why his case should not be dismissed for failing to file a witness
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list. Mr. Conner’s failure to respond to the court’s order or file a witness list renders his
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argument that “[d]efendants continue to seek a one-sided trial, one in which only their
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story gets told,” especially strange.
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Mr. Conner emphasizes his pro se status. While his decision to proceed without
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a lawyer obligates the court to “construe [his] pleadings liberally and to afford [him] the
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benefit of the doubt,”8 apart from liberal construction of a pro se plaintiff’s pleadings,
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“pro se litigants in the ordinary civil case should not be treated more favorably than
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parties with counsel of record.”9 Most importantly, “pro se litigants are [still] bound by
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the rules of procedure.”10 Here, Mr. Conner has failed to comply with two court orders.
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Federal Rule of Civil Procedure 16 states that “[o]n motion or on its own, the
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court may issue any just orders, including [sanctions] authorized by Rule
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37(b)(2)(A)(ii)–(vii), if a party . . . fails to obey a scheduling or other pretrial order.”11
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Rule 37(b)(2)(A)(v) contemplates “dismissing the action or proceeding in whole or in
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part.”12
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Five factors bear on whether a case should be dismissed as a sanction: “(1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its
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Id.
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King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
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Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).
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King, 814 F.2d at 567.
Fed. R. Civ. P. 16(f)(1)(C).
Fed. R. Civ. P. 37(b)(2)(A)(v).
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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
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disposition of cases on their merits; and (5) the availability of less drastic alternatives.”13
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With respect to the first factor, the Ninth Circuit has recognized that “the public’s
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interest in expeditious resolution of litigation always favors dismissal.”14 The present
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situation is no different, and the first factor strongly favors dismissal. The second factor
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also strongly favors dismissal: the court is faced with the prospect of devoting
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considerable judicial resources to a trial in which the plaintiff has no witnesses.
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Dismissal would also eliminate the risk of prejudice to defendants because defendants
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would no longer be required to attend a trial in which plaintiff calls no witnesses. The
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third factor therefore strongly favors dismissal. It is unclear how the fourth factor could
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ever weigh in favor of dismissal, however, here, the weight of the public policy in favor
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of resolving disputes on their merits is severely undermined by plaintiff’s failure to file a
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witness list. Finally, while less drastic alternatives are available, the court concludes
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that they would be futile. The court’s scheduling order was clear–witness lists were due
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on February 13, 2012. Several weeks after that deadline passed, the court explicitly
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stated that dismissal would be strongly considered if plaintiff did not show cause,
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because he would be unable to make a case at trial. Mr. Conner did not comply with
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the court’s order.
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Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal quotations
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omitted).
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Id.
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III. CONCLUSION
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For the reasons above, pursuant to Federal Rule of Civil Procedure 16(f)(1)(C),
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plaintiff’s remaining claims are DISMISSED with prejudice for failing to comply with the
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orders at dockets 118 and 143. The final pre-trial conference and trial set for April 23,
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2012, are hereby VACATED.
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DATED this 30th day of March 2012.
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/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
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