Koon v. Prince George County et al
Filing
66
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/8/2019. (td for sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BEATRICE KOON, as mother and
next friend of Elijah Glay,
et al.
:
:
v.
:
Civil Action No. DKC 17-2799
:
CORPORAL TAVARRAS EDWARDS
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this civil
rights
action
Plaintiffs,
is
the
Beatrice
motion
Koon,
as
to
continue
mother
Glay, and N.G., Mr. Glay’s daughter.
of
the
trial
filed
deceased
(ECF No. 61).
by
Elijah
The issues
have been briefed, and the court now rules, no hearing being
deemed necessary.
Local Rule 105.6.
For the following reasons,
the motion to continue will be denied and the case will be
dismissed for failure to prosecute.
I.
Background
This case stems from Defendant Officer Tavarras Edwards’s
shooting of Mr. Glay, who was unarmed.
On September 30, 2016, Plaintiffs filed a complaint in the
Circuit
Court
for
Prince
George’s
negligence and wrongful death claims.
County,
Maryland
(ECF No. 2).
asserting
On July 31,
2017, Plaintiffs filed an amended complaint to include excessive
force claims under 42 U.S.C. § 1983.
(ECF No. 30).
Defendants
then removed this action to the United States District Court for
the District of Maryland.
(ECF No. 1).
On February 16, 2018, discovery closed and the parties’
status report was due.
(ECF No. 42).
Defendants filed a status
report, but Plaintiffs did not provide input.
(ECF No. 43).
On
March 15, 2018, Defendants filed a motion for summary judgment.
(ECF No. 44).
On April 25, 2018, after Plaintiffs failed to
file a timely response to Defendants’ motion, the court issued a
paperless notice to counsel requesting that Plaintiffs “file a
response or advise the court if no opposition will be filed[.]”
(ECF No. 45).
On May 1, 2018, Plaintiffs filed their response,
(ECF No. 46), and on May 16, 2018, Defendants replied (ECF No.
47).
On March 22, 2019, the court denied in part and granted in
part Defendants’ motion.
(ECF Nos. 48, 49).
The remaining
claim alleges that Defendant Edwards used excessive force in
violation of § 1983.
On April 16, 2019, the parties participated in a telephone
conference with the court.
(ECF No. 50, at 1).
During the
telephone conference, the parties agreed to a July 29, 2019
deadline
for
the
pretrial
order,
motions
in
limine,
joint
proposed voir dire questions, joint proposed jury instructions,
and joint proposed special verdict form.
(Id.).
The parties
scheduled the pretrial conference for August 5, 2019.
(Id.).
On July 29, 2019, Defendant Edwards filed a proposed pretrial
2
order
and
noted
that
“Plaintiff[s]
did
not
submit
a
draft
pretrial order 14 days before July 29, 2019, as required by
[Local Rule] 106.3[]” and “ha[ve] not submitted a draft pretrial
order or any other documents required[.]”
(ECF No. 56).
The
court again issued a paperless notice requesting that Plaintiffs
advise the court and opposing counsel “[i]f [they] do not intend
to prosecute this case, or if there is a good reason for [their]
failure
to
comply
with
the
schedule[.]”
(ECF
No.
58).
Plaintiffs submitted their proposed pretrial statement on the
day of the pretrial conference.
(ECF No. 59).
During the
pretrial conference, Plaintiffs’ counsel conceded that they were
not ready for trial.
The
court
directed
postpone trial.
(ECF No. 61, at 1–2; ECF No. 64, at 4–5).
Plaintiffs’
(ECF No. 60).
counsel
to
file
a
motion
to
The court cautioned counsel that
if it denied the motion to postpone, it would dismiss the case
for failure to prosecute.
On
September
6,
(ECF No. 61, at 2; ECF No. 64, at 4).
2019,
pending motion to continue.
Plaintiffs
(ECF No. 61).
filed
the
presently
Defendant responded
on September 20, 2019, (ECF No. 64), and Plaintiffs replied on
September 27, 2019 (ECF No. 65).
II.
Motion to Continue
Plaintiffs seek a continuance, and a modification of the
scheduling order, under Fed.R.Civ.P 16(b).
“A schedule may be
modified only for good cause and with the judge’s consent.”
3
Fed.R.Civ.P. 16(b)(4).
relief
to
show
that
“Good cause requires the party seeking
the
deadlines
cannot
reasonably
be
met
despite the party’s diligence, and whatever other factors are
also considered, the good[]cause standard will not be satisfied
if the district court concludes that the party seeking relief
(or
that
party’s
attorney)
has
compliance with the schedule.”
not
acted
diligently
in
McMillan v. Cumberland Cty. Bd.
of Educ., 734 F.App’x 836, 846 (4th Cir. 2018) (alterations,
citations,
and
quotations
omitted);
see
also
6A
Charles
A.
Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and
Procedure § 1522.2 (3d ed.).
discovery
is
needed,
“A party’s assertion that further
without
more,
will
not
suffice.”
6A
Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice
and
Procedure
§ 1522.2
(3d
ed.).
“Similarly,
the
failure to explain satisfactorily delays that led to the need
for modification will result in a refusal to modify the order.”
Id.
Plaintiffs
argue
that
good
cause
exists
to
modify
scheduling order and postpone trial for three reasons.
the
First,
Plaintiffs’ counsel experienced technology issues resulting in a
complete system crash and the subsequent loss of the “entire
case including possible leads for witnesses and the like[.]”
(ECF No. 61, at 2).
Second, Plaintiffs’ “efforts to secure an
expert witness [were] futile.”
(Id.).
4
Third, the continuance
would afford Plaintiffs “the opportunity to find more resources
that will allow [them] [to] locate witnesses and perhaps add to
[their] legal team.”
resources
(Id.).
underlies
postponement.
the
Plaintiffs’ lack of financial
second
and
third
questions
the
applicability
of
standard “in view of the posture of this case.”
Instead,
dismissed
for
(Id., 2–3).
Defendant
5).
grounds
Defendant
because
argues
Plaintiff[s]
that
ha[ve]
the
the
good
(ECF No. 64, at
“case
failed
cause
to
with any degree of diligence from its inception.”
should
be
prosecute
it
Id.
Section
III of this opinion addresses Plaintiffs’ failure to prosecute.
Plaintiffs failed to show good cause to postpone trial.
Plaintiffs’
first
argument
occurred in July 2019.
explain
Plaintiffs’
is
unavailing.
(ECF No. 65, at 3).
failure
to
provide
The
system
crash
While the crash may
materials
for
the
pretrial conference promptly, it does not explain Plaintiffs’
counsel’s
failures
and
lack
of
diligence
up
to
that
point.
Plaintiffs contend that the crash caused them to lose “possible
leads for witnesses[.]”
(ECF No. 61, at 2).
This suggests that
Plaintiffs failed to contact or develop witnesses prior to July
2019.
Indeed, at the pretrial conference, Plaintiffs conceded
that they had not prepared witnesses, issued subpoenas, obtained
the necessary documents to present their case, or secured an
5
expert
witness.
(ECF
No.
64,
at
4).
obligations existed years before July 2019.
These
preparatory
(ECF No. 42).
Plaintiffs’ second and third arguments for postponement are
similarly unconvincing.
February 16, 2018.
requests
for
The discovery deadline in this case was
(ECF No. 42).
extensions
of
Plaintiffs did not file any
time
to
continue
discovery.
Moreover, Plaintiffs have not articulated how they would remedy
their lack of preparedness with a postponement.
States
Court
of
Appeals
for
the
Fourth
The United
Circuit
addressed
a
similar situation in Krodel v. Houghtaling, 468 F.2d 887 (4th
Cir. 1972).
In Krodel, the Fourth Circuit affirmed a district
court’s denial of a plaintiff’s motion for a continuance to
contact material witnesses when “the record reveal[ed] that [the
plaintiff] had neither interviewed nor subpoenaed any of the[]
individuals[]”
and
“further
indicate[d]
that
[the]
plaintiff
knew nothing of the testimony he expected to elicit from these
witnesses[.]”
468 F.2d at 887–88.
Plaintiffs failed to show
good cause to postpone the trial and their motion to continue
will be denied.
III. Dismissal for Failure to Prosecute
During the pretrial conference, Plaintiffs admitted that
they
could
postponement.
postponement,
not
try
the
case
Plaintiffs
they
faced
also
if
did
acknowledged
dismissal
6
they
for
failure
not
obtain
a
that
absent
a
to
prosecute.
Fed.R.Civ.P 41(b) provides: “If the plaintiff fails to prosecute
or
to
comply
with
[the
Federal
Rules]
or
a
court
order,
a
defendant may move to dismiss the action or any claim against
it.”
Federal trial courts have inherent authority to dismiss a
plaintiff’s
action
with
prejudice
for
failure
to
prosecute.
Link v. Wabash R. Co., 370 U.S. 626, 629–30 (1962); see also
United States v. Shaffer Equip. Co., 11 F.3d 450, 461–62 (4th
Cir. 1993).
“[W]hen circumstances make such action appropriate,
a [d]istrict [c]ourt may dismiss a complaint for failure to
prosecute even without affording notice of its intention to do
so[.]”
Link, 370 U.S. at 632.
“Dismissal with prejudice is a
‘harsh sanction which should not be invoked lightly.’”
Leasing
Corp.
v.
Lopez,
669
F.2d
919,
920
(4th
Chandler
Cir.
1982)
(quoting Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978).
There are four factors to consider: “(1) the degree of personal
responsibility of the plaintiff; (2) the amount of prejudice
caused the defendant; (3) the existence of a ‘drawn out history
of deliberately proceeding in a dilatory fashion;’ and (4) the
existence of a sanction less drastic than dismissal.”
Chandler
Leasing Corp., 669 F.2d at 920 (quoting Davis, 588 F.2d at 70);
see
also
Black
Water
Marine
Explorer
LLC
v.
Unidentified
Shipwrecked Vessel or Vessels, 714 F.App’x 296, 297 (4th Cir.
2018).
7
Here, the third factor dominates the analysis.
The facts
preventing Plaintiffs from showing good cause to postpone the
trial also demonstrate Plaintiffs’ history of proceeding in a
dilatory fashion.
Plaintiffs repeatedly failed to proceed in a
timely fashion at every instance in this case.
said
how
much
more
time
they
need
or
specifically, with any additional time.
what
They have not
they
would
do,
The complaint will be
dismissed with prejudice for failure to prosecute.
IV.
Conclusion
For the foregoing reasons, the motion to continue trial
filed by Plaintiff will be denied and the case will be dismissed
for failure to prosecute.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
8
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