Thede v. United Airlines, Inc.

Filing 78

ORDER REQUIRING PLAINTIFF TO SHOW CAUSE WHY THE COURT SHOULD NOT DISMISS ACTION, DIRECTING PLAINTIFF'S COUNSEL TO CERTIFY PRIOR SERVICE TO PLAINTIFF, AND VACATING CERTAIN DATES AND DEADLINES by Judge Phyllis J. Hamilton. (pjhlc2S, COURT STAFF) (Filed on 1/12/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JEREMIAH THEDE,

v.

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UNITED AIRLINES, INC.,
Defendant.

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United States District Court
Northern District of California

Case No. 17-cv-03528-PJH

Plaintiff,

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ORDER REQUIRING PLAINTIFF TO
SHOW CAUSE WHY THE COURT
SHOULD NOT DISMISS ACTION,
DIRECTING PLAINTIFF’S COUNSEL
TO CERTIFY PRIOR SERVICE TO
PLAINITFF, AND VACATING
CERTAIN DATES AND DEADLINES
Re: Dkt. Nos. 73, 75, 76

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On November 18, 2020, plaintiff’s former counsel, Michael S. Danko and his law

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firm Danko Meredith (collectively, “attorney Danko”) filed a motion to withdraw as counsel

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for plaintiff. Dkt. 71. On November 25, 2020, the court granted attorney Danko’s motion

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on the condition that attorney Danko “continue to receive and forward any filings or other

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papers in this action until plaintiff appears pro se or retains substituted counsel. This

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condition expires on December 31, 2020.” Dkt. 73 at 2 (emphasis in the original).

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In that same order, the court permitted plaintiff until December 31, 2020 to appear

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pro se or retain substitute counsel. Id. The court expressly cautioned plaintiff that if he

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failed to do so “by that date, the court may enter a Rule 41(b) order of dismissal for failure

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to prosecute. Id. To date, neither substitute counsel nor plaintiff has appeared in this

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action.

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On December 15, 2020, defendant filed an administrative motion requesting an

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order (1) requiring plaintiff to appear for a remote video deposition and (2) extending

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various dates in this action. Dkt. 74. In support of its requests, defendant detailed a

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pattern of behavior by plaintiff over the past several months of discovery that has made it

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difficult for defendant to develop its case. Id. at 1. Defendant specified that plaintiff failed

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to provide sufficient discovery responses, Dkt. 74-1 ¶¶ 3, 5, failed to appear for two

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noticed depositions, id. ¶¶ 7, 9-11, and requested a four-month postponement of his

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mandatory settlement conference before Magistrate Judge Westmore, id. ¶ 8. Aside

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from some vague statements by plaintiff’s then-counsel (attorney Danko) that plaintiff was

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“unwell,” id. ¶¶ 7-8, plaintiff failed to provide any meaningful explanation for his behavior.

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Plaintiff did not oppose defendant’s motion or contest its characterization of his litigation

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conduct.

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On December 23, 2020, on the basis of the above-referenced conduct, the court
issued an order compelling plaintiff to appear for a video deposition. Dkt. 75 at 2. It

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United States District Court
Northern District of California

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permitted defendant to notice that deposition “for no earlier than Wednesday, December

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30, 2020 and no later than Wednesday, January 6, 2021.” Id. For a second time, the

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court expressly cautioned plaintiff that if he “fails to appear for his third-noticed

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deposition, the court may altogether dismiss his action with prejudice for failure to comply

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with this order [compelling his deposition] and failure to prosecute under Rule 41(b).” Id.

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On January 1, 2021, defendant filed a letter with the court. Dkt. 76. In it,

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defendant (1) explains that plaintiff failed to appear for his third-noticed deposition and (2)

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requests that the court dismiss this action pursuant to Rule 41(b) for his failure to comply

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with the court’s prior orders and prosecute this action. Id. at 2.

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In support of its request, defendant attaches two emails that it sent to attorney

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Danko on December 23, 2020. The first email attaches a copy of the court’s December

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23, 2020 order. Dkt. 76-3 (10:21 am email with attachment). The second email attaches

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a copy of defendant’s second amended notice of deposition. Dkt. 76-5 (3:00 pm email

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with attachment). In both emails, defendant asks attorney Danko to send the above-

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referenced attachments to plaintiff. Dkt. 76-3 at 1 (“But in the meantime, please send the

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attached order to Mr. Thede as Judge Hamilton required.”); Dkt. 76-5 at 1 (“Please

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forward [the second amended notice of deposition] to Mr. Thede.”). Defendant also

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attaches a third email that it sent to attorney Danko on December 28, 2020. Dkt. 76-1 at
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1-3. That email attaches a copy of the court reporter’s technical procedures for

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conducting a video deposition. Id. at 4-5. Defendant again asked attorney Danko to

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immediately forward the subject procedures to plaintiff. Id. at 1 (“Could you please

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forward this information to Mr. Thede as soon as possible.”).
Despite the above-listed notice from defendant, plaintiff did not appear for his

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deposition. Dkt. 76-1 (deposition transcript reflecting plaintiff’s non-appearance after over

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30 minutes of waiting past noticed time). On the deposition record, defendant’s counsel

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stated that, in addition to his emails to attorney Danko, he himself “asked that plaintiff

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advise us of his intentions with respect to the deposition.” Id. (deposition transcript 6:14-

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19). Defendant’s counsel then noted that he has “heard nothing from plaintiff,” including

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United States District Court
Northern District of California

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“nothing that would constitute a writing 48 hours or more prior to this point about the

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deposition or why plaintiff believed he could not appear.” Id. at 3 (deposition transcript

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6:14-7:5).

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On January 2, 2021, defendant filed a proof of service showing that it post-mailed

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a copy of its January 1, 2021 letter (Dkt. 76) to plaintiff on January 2. Dkt. 77. To date,

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plaintiff has not filed any response. In light of the above, the court orders the following:

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Attorney Danko must file a certification showing its compliance with the court’s

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November 25, 2020 order requiring that it continue to receive and forward all

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prospective filings (including the November 25 order) until and including December

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31, 2020. As part of its certification, attorney Danko must specify the date and

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method that it forwarded each such filing. In the event attorney Danko did not

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forward any such filing, it must state so. Attorney Danko must file the subject

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certification within ten days of this order.

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Plaintiff must show cause why this action should not be dismissed pursuant to

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Rule 41(b) for failure to comply with his discovery obligations, failure to appear or

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retain substitute counsel, failure to appear for his various noticed depositions, and

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general failure to prosecute this action. Plaintiff must file a response addressing

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all of these failures within ten days of this order. In the event plaintiff fails to do
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so, the court will dismiss this action with prejudice for failure to comply with its prior

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orders and failure to prosecute under Rule 41(b). The court orders defendant to

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immediately serve plaintiff with a copy of this order and file a proof of such service.

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All dates and deadlines in this action, EXCEPT for the parties’ February 10, 2021

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settlement conference with Judge Westmore (Dkt. 70), are VACATED.

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IT IS SO ORDERED.

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Dated: January 12, 2021
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge

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United States District Court
Northern District of California

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