Jacob v. Houston

Filing 153

MEMORANDUM AND ORDER - IT IS ORDERED that: Nebraska Attorney General Doug Peterson and James D. Smith are ordered to appear before this court for a hearing on February 19, 2015, at 1:30 p.m., in Courtroom Number 3 of the Roman L. Hruska United Stat es Courthouse, 111 South 18th Plaza, Omaha,Nebraska. They will be required to show cause why financial sanctions should not be imposed in this case pursuant to Rule 16(f). The clerk's office is directed to mail a copy of this Memorandum and Order to Nebraska Attorney General Doug Peterson. Ordered by Senior Judge Joseph F. Bataillon. (Copies mailed as directed and to pro se party)(TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVEN M. JACOB,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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4:10CV3073

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. For the reasons set forth below,
the court will order Nebraska Attorney General Doug Peterson and counsel for Respondent,
James D. Smith, to appear before the court to show cause why financial sanctions should not
be imposed.
I. BACKGROUND
On October 8, 2014, the court entered an order progressing this case to final
disposition. The court ordered Respondent to either file all state courts records relevant to
the cognizable claims or file a motion for summary judgment by December 8, 2014. (Filing
No. 137 at CM/ECF pp. 1-2.) On December 8, 2014, Respondent asked for, and was
granted, an extension of time until December 15, 2014, to file the state court records. (Filing
No. 138; Text Order dated December 9, 2014.)
On December 15, 2014, instead of filing the state court records, Respondent filed a
“Motion for Clarification or Leave Regarding Filing of State Court Records and Answer”
(Filing No. 140), in which he asked for leave to file a hyperlinked index of the designation
of the state court records. The court granted Respondent’s motion and ordered Respondent
to file the hyperlinked index by December 22, 2014. (Filing No. 141.)
On December 22, 2014, Respondent filed state court records, a hyperlinked index,
and an answer. Respondent did not file a brief in support of the answer as required by the

court’s progression order dated October 8, 2014. (See Filing No. 137 at CM/ECF p. 3 (“The
answer shall be accompanied by a separate brief, submitted at the time of the filing of the
answer.”) Instead, on January 8, 2015, Respondent asked for, and received, “an enlargement
of time of five (5) days until January 13, 2015,” to file his brief in support of his answer.
(Filing No. 145; Text Order dated January 9, 2015.)
Respondent did not file a brief in support of his answer on January 13, 2015. Instead,
on January 26, 2015, Respondent asked for “an enlargement of time of two weeks until
January 29, 2015,” to file his brief in support of answer. (Filing No. 148.) The court
granted Respondent’s request, but wrote the following message directed to counsel for
Respondent:
The court realizes that, as bureau chief in the Nebraska Attorney
General’s Office (see Filing No. 145 at CM/ECF p. 1), counsel for
Respondent is very busy. However, the court must treat pro se litigants with
the same respect and consideration as any other plaintiff or petitioner, as
should the State. The court notes counsel for Respondent has failed to meet
other deadlines in this case and in other cases before this court.
IT IS ORDERED: Respondent’s Motion to Extend is granted.
Respondent will have until January 29, 2015, to file a brief in support of an
answer. The court requests that counsel for Respondent strictly abide by the
court’s progression orders in the future.
(Filing No. 149.) Despite being advised to strictly abide by the court’s progression orders
in the future, Respondent did not file his brief in support of answer until February 9, 2015,
11 days after the deadline set forth by the court. No request for extension of time or
explanation for the late filing accompanied Respondent’s brief.
The court notes that it has, on at least two previous occasions in one other case,
ordered a respondent represented by James D. Smith to show cause or excusable neglect for
failure to comply with the court’s progression orders. (See Case Number 8:13-cv-00195JFB-PRSE, Filing No. 22 and Filing No. 53.)

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II. DISCUSSION
Rule 16(f) of the Rules of Civil Procedure sets forth that this court may, on its own
motion, issue any just order in response to an attorney’s failure to obey a scheduling order.
Fed. R. Civ. P. 16(f)(1)(C). Upon careful consideration, the court finds that financial
sanctions may be appropriate in this matter. The court notes, in particular, its prior warning
to Respondent in this case that failure to file a brief in a timely fashion could result in the
imposition of sanctions. (Filing No. 100 at CM/ECF p. 1.)
IT IS ORDERED that:
1.

Nebraska Attorney General Doug Peterson and James D. Smith are ordered

to appear before this court for a hearing on February 19, 2015, at 1:30 p.m., in Courtroom
Number 3 of the Roman L. Hruska United States Courthouse, 111 South 18th Plaza, Omaha,
Nebraska. They will be required to show cause why financial sanctions should not be
imposed in this case pursuant to Rule 16(f).
2.

The clerk’s office is directed to mail a copy of this Memorandum and Order

to Nebraska Attorney General Doug Peterson.
DATED this 17th day of February, 2015.
BY THE COURT:

s/ Joseph F. Bataillon
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their
Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no
responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the
user to some other site does not affect the opinion of the court.

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