Lauro v. State of Hawaii et al
ORDER DISMISSING CASE. Signed by JUDGE DERRICK K. WATSON on 12/3/2015. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
CIVIL NO. 12-00637 DKW-BMK
ORDER DISMISSING CASE
STATE OF HAWAII, et al.,
ORDER DISMISSING CASE
This case before the Court has been pending for over three years, with trial
set to begin on December 14, 2015. Despite the imminence of trial, Plaintiff
Thomas Lauro has largely absented himself from pretrial proceedings and trial
preparation, and ignored specific Court orders and instructions directed to him
personally, impeding the orderly administration of justice. Having considered the
five factors that bear on the propriety of dismissal, and acknowledging the severity
of the sanction, the Court nonetheless concludes that dismissal is the appropriate
sanction under the circumstances. Accordingly, the Court DISMISSES this case
for the reasons set forth below.
Relevant Pretrial Proceedings
At a hearing on August 17, 2015, the Court briefly continued the trial date
from November 2, 2015 to December 14, 2015 upon the request, and with the
concurrence, of all counsel. Dkt. No. 170. The Court observed at that time that the
case had been pending for nearly three years, and that no further continuance of the
trial would be entertained.
On November 10, 2015, the Magistrate Judge held a final pretrial
conference. Dkt. No. 214. Mr. Lauro did not participate in the final pretrial
conference. According to defense counsel’s pretrial statement, Mr. Lauro had been
incarcerated at Halawa Correctional Facility, but “[t]he most recent parole was
granted on August 20, 2015. On September 29, 2015, [Mr. Lauro] left his parole
residence without authority and remains absent in violation of his parole.” Dkt.
No. 213 at 8.
Plaintiff’s Repeated Willful Violations of Court Orders1
On November 13, 2015, Plaintiff’s counsel filed a renewed Motion to
Withdraw as Counsel (“Motion to Withdraw” [Dkt. No. 218]) and a Motion to
Continue Trial Date and Extend Rule 16 Scheduling Order Deadlines (“Motion to
Continue” [Dkt. No. 220]). After agreeing to expedite consideration of these
Although this order focuses on Mr. Lauro’s most recent violations of Court orders, the Court notes that Mr. Lauro’s
non-compliance with Court orders has been a continuous pattern throughout this case. See, e.g., Dkt. Nos. 136, 162.
Motions, the Court directed Plaintiff’s counsel to ensure Mr. Lauro’s participation
in the November 19, 2015 hearing on the Motions [Dkt. No. 222], and it is evident
from the record [Dkt. No. 232] that counsel complied with this order by both
providing copies of the aforementioned Motions to Mr. Lauro and requesting that
he arrange with counsel to appear either in person or telephonically at the hearing.
It is equally evident that Mr. Lauro received counsel’s communications and was
aware that the Court had directed him to participate in the November 19 hearing.
See Dkt. No. 232.
Plaintiff’s Failure to Appear at the November 19, 2015 Hearing
On November 19, 2015, the Court held a hearing on Plaintiff’s counsel’s
Motions. Dkt. No. 231. Despite Mr. Lauro’s awareness of the Court’s order
directing him to participate in the hearing, Mr. Lauro did not appear at the hearing,
nor did he contact counsel or the Court to arrange a telephonic appearance. In fact,
the Court itself attempted to reach Mr. Lauro by telephone three times and by
email prior to the hearing, but was unsuccessful. Dkt. No. 231. Mr. Lauro did not
answer the telephone, did not return the Court’s calls, and did not respond to the
Based on the record before the Court, including the information conveyed to
the Court by Plaintiff’s counsel during the sealed portion of the November 19
hearing, the Court denied the Motion to Withdraw without prejudice. Dkt. No.
231. The Court also denied without prejudice the Motion to Continue Trial Date
and to Extend Rule 16 Scheduling Order Deadlines, with the exception of briefly
extending the deadline for one particular motion in limine. Dkt. No. 231.
In light of the events that had transpired, including a material change in
circumstances that Plaintiff’s counsel raised during the sealed portion of the
hearing that would have likely affected the parties’ settlement posture, the Court
ordered all parties and their counsel to participate in a final mandatory settlement
conference before Magistrate Judge Kurren on December 1, 2015 at 10:00 a.m.
Dkt. Nos. 231, 233. The written order stated:
All parties, including Mr. Lauro, are directed to personally
appear at the settlement conference on December 1, 2015 at
10:00 a.m. Telephonic appearances are NOT acceptable.
Dkt. No. 233.
Given Mr. Lauro’s failure to appear on November 19, as ordered, the
Court’s November 19 entering order expressly warned Mr. Lauro that his
failure to appear on December 1 would result in the dismissal of his case:
Mr. Lauro is notified that his failure to personally appear at the
scheduled settlement conference before Magistrate Judge
Kurren will be deemed a willful violation of a Court order.
Having considered less drastic sanctions, as well as the stage
and history of the proceedings, the Court hereby notifies Mr.
Lauro that the failure to appear in person at the settlement
conference on December 1, 2015 at 10:00 a.m. will result in the
dismissal of his case without further notice.
Plaintiff’s counsel is instructed to immediately communicate
the contents of the instant EO to Mr. Lauro by any available
means, including by telephone, letter, and/or e-mail. The Court
will do so as well.
Dkt. No. 233.
After issuing the order, the Court immediately called Mr. Lauro on
November 19 and read verbatim the aforementioned order to him. Mr. Lauro
confirmed over the phone that he understood the order. The Court also emailed
Mr. Lauro a copy of the order at the address he provided.
Plaintiff’s Failure to Appear at the December 1, 2015 Mandatory
On request of all counsel, this Court held a hearing and ruled on Defendants’
Joint Motion in Limine No. 3 prior to the settlement conference, as they believed a
ruling on the motion would be instructive to settlement discussions. Dkt. No. 318.
Defendants’ Motion in Limine No. 3 related to excluding evidence of Dr. Steven
DeWitt’s October 2011 statements to the Hawaii Parole Board. Dkt. No. 247. The
Court granted Defendants’ Motion in Limine No. 3, thus adding another material
change in circumstance relevant to the impending settlement conference. Dkt. No.
Notwithstanding the explicit directive of the Court’s November 19, 2015
order, Mr. Lauro failed to appear at the December 1, 2015 settlement conference
before Magistrate Judge Kurren. Dkt. No. 319. Plaintiff’s counsel produced
emails showing that they notified Mr. Lauro of the mandatory conference and of
this Court’s entering order cautioning him that the failure to heed the Court’s
directive would jeopardize the continued viability of the case. Dkt. No. 319.
Plaintiff’s counsel also produced an email response from Mr. Lauro, indicating that
he would appear in Court for trial, but for no other hearing, irrespective of what the
Court had ordered. Dkt. No. 319. In an effort to rule out the possibility that he had
been arrested for his parole violations, and was therefore unable to appear for the
settlement conference, Magistrate Judge Kurren directed defense counsel to
confirm whether Mr. Lauro was in state custody. Defense counsel then contacted
Mr. Lauro’s parole officer, who confirmed that Mr. Lauro had not been
apprehended. Dkt. No. 319. To date, Mr. Lauro’s precise whereabouts remain
unknown because he has refused to provide that information to his own counsel or
to the Court.
District courts have the inherent power to control their dockets and may
impose sanctions, including dismissal, in the exercise of that discretion. See Link
v. Wabash Railroad Co., 370 U.S. 626 (1962); Hamilton Copper & Steel Corp. v.
Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990). Because dismissal is a
harsh penalty, the Court is cognizant that it should impose such a sanction only in
rare circumstances. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
This case presents such circumstances.
Before dismissing an action for failure to comply with a court order, the
Court must weigh: “(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic sanctions.” In re Phenylpropanolamine (PPA)
Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone
v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). The Ninth Circuit has
advised that “[t]hese factors are ‘not a series of conditions precedent before the
judge can do anything,’ but a ‘way for a district judge to think about what to do.’”
Id. (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir.
1998)). Upon careful consideration of these factors, the Court concludes that
dismissal is warranted under the circumstances.
The instant case has been pending for three years. To promote the
expeditious resolution of litigation, the Court set a firm trial date of December 14,
2015 over the objection of all counsel, who wished to postpone trial into 2016.
Adhering to this trial date required Mr. Lauro, at minimum, to cooperate with his
counsel. Mr. Lauro assured Magistrate Judge Kurren that he was willing to do so
at the August 10, 2015 hearing on his counsel’s first Motion to Withdraw. Dkt.
No. 169 at 6. Mr. Lauro reneged on this promise by refusing to personally meet
with his counsel to prepare for trial, thus jeopardizing his counsel’s ability to
effectively represent him at trial. See Dkt. No. 232. Mr. Lauro’s conduct also
jeopardized the Court’s ability to manage its docket and adhere to the December
14, 2015 trial date.
To address these issues, the Court ordered Mr. Lauro to participate in the
November 19 hearing on his counsel’s renewed Motion to Withdraw and Motion
to Continue Trial. In violation of the Court’s directive, Mr. Lauro did not
participate in the hearing and did not otherwise make himself available by
telephone. The Court attempted to reach Mr. Lauro by phone three times and by
email prior to the hearing. Based on the record before the Court, including a
material change in circumstance conveyed to the Court by Plaintiff’s counsel
during the sealed portion of the hearing, the Court found it prudent for all parties
and their counsel to personally attend a final settlement conference before
Magistrate Judge Kurren on December 1, 2015. The Court made it abundantly
clear that Mr. Lauro’s presence was required, and that his failure to attend would
be deemed “a willful violation of a Court order” and “result in the dismissal of his
case without further notice.” Dkt. No. 233. The Court not only sent the order to
Mr. Lauro by email, but also read the entirety of the written order to him verbatim
over the phone on November 19, 2015 when the Court was finally able to
successfully reach him.
Mr. Lauro’s failure to appear at the December 1, 2015 settlement
conference, a conference critical to the potential resolution of the case prior to trial,
demonstrates a willful violation of the Court’s November 19, 2015 order. Mr.
Lauro had actual notice of the mandatory settlement conference, and the
consequences of failing to abide by that notice, yet he deliberately absented
himself. Moreover, Mr. Lauro’s email communications indicate that he will not
attend any pretrial hearing, whatever the Court may order. Dkt. No. 319.
Mr. Lauro’s willful and deliberate violations of the Court’s orders run afoul
of the public’s interest in expeditious resolution of litigation and impede the
Court’s ability to manage its docket. Defendants complied with the Court’s
November 19, 2015 order by attending the December 1, 2015 settlement
conference in good faith, only to have Mr. Lauro fail to appear. Mr. Lauro’s
absence prejudiced the Defendants’ ability to potentially settle the case before trial
and bring the case to a timely resolution. See Malone, 833 F.2d at 131 (finding
that the plaintiff’s “dilatory conduct greatly impeded resolution of the case and
prevented the district court from adhering to its trial schedule”).
The Court is acutely aware of the medical hardships that Mr. Lauro has
suffered and continues to suffer. See Dkt. No. 232. Under the circumstances,
however, Mr. Lauro’s medical hardships do not excuse his lack of compliance with
Court orders. The Court finds that Mr. Lauro’s actions demonstrate a defiance of
the judicial process. In light of the circumstances, including Mr. Lauro’s email
communications making clear that he will not attend any Court proceedings other
than trial, the Court determines that dismissal is the only appropriate sanction. To
be clear, the Court has considered the full panoply of less drastic sanctions,
including monetary and evidentiary sanctions, but concludes that dismissal is
warranted based upon Mr. Lauro’s willful conduct in violation of specific Court
See Malone, 833 F.2d at 132 (upholding dismissal as a sanction for
violation of a court order “where the plaintiff has purposefully and defiantly
violated a court order”). “A plaintiff can hardly be surprised by a harsh sanction in
response to willful violation of a pretrial order.” Id. at 133.
The Court acknowledges that public policy favors disposing of cases on their
merits. Indeed, the Court managed this case, attempting to do just that. However,
because four of the factors heavily favor dismissal, this lone factor is outweighed.
See id. at 133 n.2. Mr. Lauro had actual notice that his failure to comply with the
Court’s November 19, 2015 order would result in the dismissal of this action. Yet
he consciously chose not to appear, apparently indifferent to seeing this case to the
end. Mr. Lauro continuously and knowingly impeded the orderly administration of
justice, which the Court will no longer countenance.
For the foregoing reasons, the Court DISMISSES this action, and the Clerk
of the Court is directed to close the case.
IT IS SO ORDERED.
DATED: December 3, 2015 at Honolulu, Hawai‘i.
Lauro v. State of Hawaii, et al.; CV 12-00637 DKW-BMK; ORDER
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