Diamond v. Marable et al

Filing 39

OPINION AND ORDER DISMISSING CASE with Prejudice. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EARL DIAMOND,
Plaintiff,

Case No. 12-cv-11516
Paul D. Borman
United States District Judge

v.
HERMAN MARABLE,
SHELDON WOLIN, and S. WOLIN & CO.,
Defendants.
__________________________/

OPINION AND ORDER DISMISSING THIS ACTION WITH PREJUDICE AS ORDERED
BY THE COURT AT THE FINAL PRETRIAL CONFERENCE ON NOVEMBER 4, 2013
The Court held a final pretrial conference in this action as scheduled on November 4, 2013
at 3:30 p.m. Counsel for Defendant appeared. The Court remained convened until approximately
3:50 p.m. and Plaintiff never appeared. For reasons stated on the record and in this Order, the Court
dismissed the case on the record at the hearing on November 4, 2013 and this Order now follows.
(11/4/2013 Minute Entry: “Plaintiff failed to appear, case dismissed, order to follow.”)
On August 21, 2013, the Court issued an amended scheduling order setting forth the dates
for pretrial order submissions and the date for the final pretrial conference. (ECF No. 30.) The
Scheduling Order directed the Plaintiff to initiate a meeting with the Defendants to prepare the joint
final pretrial order and provided for sanctions, including dismissal of claims, for failure to cooperate
in preparation of the joint final pretrial order. (ECF Nos. 29, 30, ¶ III(c).) E.D. Mich. L.R. 16.2,
consistent with the Court’s Scheduling Order, also places the burden on Plaintiff’s counsel (or
plaintiff proceeding pro se) to convene a final pretrial meet and confer and allows for the sanction

1

of dismissal for failure to do so. (E.D. Mich. L.R. 16.2(a), (c).)
The initial deadline for filing the joint final pretrial order in this case was October 8, 2013
and the final pretrial conference was scheduled for October 15, 2013. On September 20, 2013, the
Court denied Plaintiff’s “Motion to Delay Pretrial,” in which Plaintiff sought to have the pretrial
conference delayed until after Plaintiff filed a summary judgment motion. (ECF No. 32, Motion to
Delay Pretrial.) As the Court explained in its Order denying Plaintiff’s motion, the deadline for
filing dispositive motions was August 10, 2013, as set forth in the Court’s March 5, 2013 Scheduling
Order, and Plaintiff offered no excuse for his untimely filing. (ECF No. 33, Order Denying Motion
to Delay Pretrial.) Copies of both Scheduling Orders, as well as the Court’s September 20, 2013
Order denying Plaintiff’s motion, which expressly reminded the parties of their obligations to
prepare the joint final pretrial order, were mailed to Plaintiff.
On September 27, 2013, this Court rescheduled the date for the final pretrial conference to
November 4, 2013 and reset the deadline for filing the joint final pretrial order to October 28, 2013,
again serving Plaintiff with a copy of this notice by mail. (September 27, 2013 Minute Entry Notice
and Certificate of Service on Plaintiff.) On October 15, 2013, Defendants filed their “Application
for Contents to be Included in Final Pretrial Order,” serving a copy on Plaintiff by mail and
indicating to the Court that Plaintiff had not contacted them regarding preparation of the joint final
pretrial order. (ECF Nos. 34, 35.)
Plaintiff did not initiate contact with Defendants to prepare a joint final pretrial order as
required by E.D. Mich. L.R. 16.2(a) and as directed by the Court in both its original Scheduling
Order and in its August 21, 2013 Scheduling Order. (ECF Nos. 29, 30, ¶ IIIA.) Nor did Plaintiff
file anything individually in preparation for the joint final pretrial conference, despite the fact that

2

the Court expressly directed, in its September 20, 2013 Order denying Plaintiff’s motion to delay
the pretrial, that the parties follow the instructions contained in the Second Amended Scheduling
Order regarding the preparation and submission of a joint final pretrial order. (ECF No. 33.)
The Court dismissed the case on the record at the hearing on November 4, 2013. Although
the Court recognizes that dismissal of claims for failure to follow the Court’s pretrial requirements
is a serious sanction, the Court concludes that such a result is entirely appropriate in this case.
Plaintiff was alerted to his responsibilities with regard to pretrial preparation on multiple occasions
and was informed that dismissal of his claims was a possible sanction for failing to cooperate in the
pretrial process. Having been so informed, Plaintiff chose not to participate in the process as
required. Such blatant disregard for the Court’s requirements supports the sanction of dismissal in
this case. See Doe v. Tecumseh Public Schools, No. 06-12493, 2007 WL 4357781, at *3 (E.D. Mich.
Dec. 13, 2007) (finding sanction of dismissal appropriate for failure to cooperate in preparation of
joint final pretrial order).
Accordingly, the Court DISMISSES Plaintiff’s Complaint.
IT IS SO ORDERED.1
s/Paul D. Borman
Paul D. Borman
United States District Judge

Dated: November 7, 2013

1

On November 7, 2013, a “Motion to Wave [sic] Plaintiffs Right to Pretrial and Motion to Disallow
Defendants Evidence and Testimony From 68th District Court Flint, Michigan Landlord Tennant
[sic] Case Court Lack Jurisdiction” was entered on the Court’s docket. (ECF No. 38, entered on
November 7, 2013 and filed on November 4, 2013.) This untimely and non-responsive filing is
stricken and does not affect the Court’s November 4, 2013 dismissal of this action.
3

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on November 7, 2013.

s/Deborah Tofil
Case Manager

4