Kotsias v. CMC II, LLC et al
ORDER granting Defts' 107 Motion to Dismiss for Failure to Prosecute, dismissing this action with prejudice; and denying Pltf's 110 & 111 Motions to Vacate Court's Order of 5/8/2017. Signed by District Judge Martin Reidinger on 8/08/2017. (ejb)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:15-cv-00242-MR-DLH
CMC II, LLC, LA VIE CARE CENTERS, )
d/b/a Consulate Health Care,
COMPANY, FLORIDA HEALTH CARE )
PROPERTIES, LLC, and ESIS,
THIS MATTER is before the Court to determine whether the dismissal
of this action is to be with or without prejudice [See Minute Entry dated May
8, 2017]. Also pending before the Court are the Plaintiff’s motions entitled
“Motion to Vacate Court’s Order Of 5.8.17 Denying Plaintiff’s Request for a
Continuance And then, Grant a Continuance” and “Motion to Vacate Court’s
Order Of 5.8.17 To Dismiss Plaintiff’s Case On Grounds that Defendants
Committed Fraud upon the Court.” [Docs. 110, 111].
For the reasons stated below, the Plaintiff’s Complaint is dismissed
with prejudice and the Plaintiff’s motions are denied.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiff, proceeding pro se, filed this action on October 23, 2015,
against the Defendants asserting claims of discrimination pursuant to Title
VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
[Doc. 1]. The Plaintiff chose to participate in the Western District of North
Carolina Pro Se Settlement Assistant Program (hereinafter “Pro Se
Program”) and pursuant thereto, Plaintiff was appointed counsel for the
limited purpose of assisting in a mediated settlement conference held on
April 14, 2016, that resulted in an impasse. [Docs. 16, 18, 20]. Thereafter, on
May 6, 2016, the parties filed their certification of initial attorney conference
and discovery plan (hereinafter “CIAC”). [Doc. 21]. The Plaintiff asserted in
the CIAC that the Defendants had engaged in criminal misconduct,
obstruction of justice, racketeering, violated her Fourth, Fifth, and Fourteenth
Amendment rights, and would perpetrate fraud upon the Court. [Id. at 3, 4].1
On May 10, 2016, the Court entered a Pretrial Order and Case
Management Plan (hereinafter “Case Management Order”), setting this
matter for trial during the May 8, 2017 civil trial term. [Doc. 22]. On October
11, 2016, the Court amended the Case Management Order, extending
The Plaintiff has persisted with these types of assertions throughout the entire course
of this litigation.
certain deadlines to complete discovery and file motions; however, the
matter remained set for trial during the May 8, 2017 civil term. [Doc. 58]. On
March 8, 2017 the Court supplemented the Case Management Order setting
forth requirements and deadlines related to the upcoming trial, such as the
filing of evidentiary motions, the designation of the excerpts of deposition
transcripts to be used at trial, the exchange of exhibits and exhibit lists, and
the filing of trial briefs, proposed jury instructions and proposed issues. [Doc.
87]. The matter still remained set for trial during the May 8, 2017 civil term.
On March 24, 2017, the Court held a hearing on the Defendants’
motions for summary judgment, which were denied. [See Minute Order dated
March 24, 2017]. At the hearing, the Court reiterated that the matter was set
for trial during the May 8, 2017 civil trial term and that the parties should
prepare accordingly. [Doc. 94 at 43, 44]. The Court informed the Plaintiff of
the challenges she faced in proceeding to trial pro se and strongly
encouraged the Plaintiff to obtain counsel and to do so immediately. [Id. at
44, 45]. The Court, however, made clear to the Plaintiff that if an attorney
made an appearance on her behalf on the eve of trial and requested a
continuance, such request would be denied due to the long set trial date.
The Plaintiff was also advised that it is the practice of this Court to set trial
dates very far in advance so that all involved parties can plan accordingly,
circumstances. [Id. at 50, 51].
On April 5, 2017, the Court granted the Defendants’ second motion for
a Judicial Settlement Conference (hereinafter “JSC”) and set the JSC for
April 24, 2017. [Docs. 88, 89].2 The Court referred the matter to the
Honorable David C. Keesler, United States Magistrate Judge, for the
purpose of conducting the JSC. [Doc. 89]. On April 13, 2017, Judge Keesler,
sua sponte, entered an order referring the matter to the Pro Se Program, and
pursuant thereto, appointed counsel to Plaintiff for the limited purpose of
assisting with the JSC. [Doc. 91]. On April 13, 2017, Plaintiff filed a motion
entitled “Plaintiff’s Motion for Alternative Hearing of Court Ordered Judicial
Settlement Conference Due to Hardship.” [Doc. 95]. The next day, April 14,
2017, was the deadline set by the Case Management Order for the Plaintiff
to file any designation of deposition excerpts for use at trial and any motions
in limine or other evidentiary motions regarding trial. [See Docs. 58, 87]. The
Plaintiff, however, failed to make any such filings by that deadline despite
having filed the motion regarding the JSC only the day before. On April 18,
The Defendants filed their first motion for Judicial Settlement Conference on January 5,
2017, which the Court denied without prejudice. [Docs. 77, 82].
2017, Judge Keesler denied the Plaintiff’s motion regarding a change in the
JSC and further ordered that if the Plaintiff had not already submitted her
confidential settlement brief to his chambers, she was directed to do so
immediately. [Docs. 95, 96].
On April 19, 2017, the Court’s chambers received a telephone call
from attorney Charles Brewer (hereinafter “Mr. Brewer”) who indicated that
he and another attorney, Gary Dodd (hereinafter “Mr. Dodd”), would possibly
make an appearance in the case for the Plaintiff. However, Mr. Brewer
expressed concern about making such a late appearance in light of the case
schedule. In response to the aforementioned telephone call, the Court
noticed a hearing for a status conference. [See Notice of Hearing dated April
19, 2017].3 On April 21, 2017, at the status conference, Mr. Brewer and Mr.
Dodd expressed concern about making appearances in the matter without
the trial date being preemptively continued to the next civil trial term. The
Plaintiff also made a motion to continue (hereinafter “First Motion to
Continue”) the JSC and trial date so that she could have counsel.4 The Court
The following were present with the Court at the status conference: Plaintiff, Mr. Brewer,
Mr. Dodd, Defendants’ counsel via telephone, the Court Reporter, the Courtroom Deputy,
and the Chambers’ Law Clerks.
Plaintiff also expressed dissatisfaction with her Pro Se Program appointed counsel and
erroneously blamed said counsel for her own failure to submit the confidential settlement
brief as directed by Judge Keesler’s Order. [Doc. 96].
stated that it was not inclined to grant a continuance, particularly considering
that no counsel had made an appearance on behalf of the Plaintiff and that
Mr. Brewer and Mr. Dodd were merely exploring the possibility of making an
appearance. After hearing further from Mr. Brewer, Mr. Dodd, the Plaintiff,
and the Defendants’ counsel, the Court denied the motion to continue the
trial without prejudice and ordered that the JSC go forward as scheduled.
The Court further determined that Mr. Dodd would be allowed to make a
special appearance limited to the JSC proceeding. The Court also conveyed
to the parties that if an attorney made a general appearance on behalf of
Plaintiff for trial, then the posture of the case would change in a manner that
would constitute a reasonable basis for a continuance. The Court, however,
also informed the parties that an appearance on behalf of Plaintiff would
need to be made soon in order to avoid disruption of the docket and minimize
any prejudice to the Defendants. On that basis, the Court made clear to the
Plaintiff that unless Mr. Brewer, Mr. Dodd, or any other attorney filed a notice
of appearance on behalf of Plaintiff by April 26, 2017, at 12:00 p.m., the case
deadlines and trial date would remain unchanged.
On April 24, 2017, the JSC resulted in an impasse and the April 26,
2017, deadline passed without an attorney filing an appearance on behalf of
the Plaintiff. [See Minute Entry dated April 24, 2017]. It was, therefore, clear
to the Plaintiff that the trial would go forward on May 8, 2017, and the
deadlines as set in the Case Management Order (as amended) stood. The
Plaintiff, however, failed to make any filings as required by the deadlines set
forth in the Case Management Order, even though the Defendants made
their filings in a timely manner. [See Docs. 87, 92, 97, 98, 99, 100].
On April 28, 2017, the Court held a lengthy final pretrial conference
with the parties. [See Minute Entry dated April 28, 2017]. At that time, the
Plaintiff had still not made any of the required pretrial filings, despite virtually
all of the deadlines provided by the Case Management Order having passed.
[See Docs. 58, 87]. The Plaintiff then for the first time asserted that she had
understood Judge Keesler’s April 13, 2017, Order to stay the pretrial filing
deadlines until the JSC was completed. The Plaintiff referred to the section
of Judge Keesler’s Order that stated, “[a]ll parties to this lawsuit will
participate in [the JSC] pursuant to the [Pro Se] Program and as directed by
this Order before undertaking any other action with respect to this lawsuit.”
[Doc. 91 at ¶ 1]. In full context, the Plaintiff’s reading of Judge Keesler’s Order
was erroneous, but the Court was again willing to give the Plaintiff the benefit
of the doubt, considering her pro se status. The Court, however, noted the
erroneous reading by Plaintiff did not justify her failure to make any of the
required pretrial filings after the JSC. The Court also noted that the Plaintiff
had actually benefited from her delay because the Defendants had complied
with the Case Management Order and thus the Plaintiff was given advanced
warning as to Defendants’ contentions regarding evidentiary issues.
At the final pretrial conference, the Plaintiff also asserted that the JSC
had been “very traumatic,” and accused the Defendants of having
perpetrated a fraud upon the Court. The Plaintiff then inquired as to when
the Court would pierce the corporate veil, and asserted that any result at the
trial of this matter would be void. The Plaintiff went on to admit that she had
not subpoenaed any witnesses for the trial and had not exchanged any
exhibits with the Defendants, despite having received the Defendants’
exhibits. The Plaintiff often made statements that were not pertinent to the
Court’s inquiries and would refer to documents that, after rummaging through
her voluminous papers and boxes, she could not find. Once again, the
Plaintiff made another motion to continue (hereinafter “Second Motion to
Continue”) the trial date. The Court denied the Plaintiff’s request for a
continuance, but under the circumstances, gave the Plaintiff a new deadline
of 12:00 p.m. on May 1, 2017, to provide her exhibits to the Defendants.
On May 2, 2017, well past nearly all of the Plaintiff’s deadlines and only
six (6) days before trial, the Plaintiff filed a motion entitled “Plaintiff’s Motion
for Extension of Time to Continue Trial” (hereinafter “Third Motion to
Continue”). [Doc. 101]. The Court noticed the motion to be heard on May 5,
2017. [See Text Order dated May 2, 2017].5 At the hearing, the Plaintiff
admitted that she still had not exchanged her exhibits with the Defendants
and justified her failure to comply with the Case Management Order by again
asserting (without offering any support) that the Defendants had engaged in
criminal misconduct, fraud, and unconstitutionally deprived Plaintiff of due
process.6 Throughout the hearing, the Plaintiff again was disorganized,
unable to find exhibits or papers for her arguments, and was unable to
meaningfully address the Court’s inquiries in regard to the status of her
preparation for trial, notwithstanding the Court’s previous admonitions to
seek counsel or to prepare earnestly for trial. The Plaintiff also presented the
Court with a partial exhibit list that the Court found wholly inadequate.
Plaintiff’s exhibit list only designated broad categories of documents as
possible exhibits with virtually no identification of what particular documents
At the hearing, the Court informed the parties that it was uncommon for the Court to set
for hearing a motion to continue so close to the trial date, and absent extraordinary
circumstances, would normally deny such a motion without a hearing.
It was a perpetual theme throughout this litigation that if the Plaintiff failed to do what
she was required to do it was the result of the Defendant’s criminal and unconstitutional
acts, and if she was not granted whatever she asked it was the result of such misconduct
by the Defendants or the bias or misconduct by the Court.
would actually be used as exhibits, in complete disregard of the instructions
set forth in the Case Management Order.7 [See Doc. 87].
Later in the hearing, the Plaintiff stated for the first time that she wanted
to play some unspecified recording or recordings during the trial.
Defendants objected, arguing that Plaintiff had never provided a copy of such
recording(s) in discovery, and had not even disclosed the existence of such
recording(s). The Plaintiff then inquired into how to designate excerpts of
deposition transcripts from another matter that she intended to present at the
trial of this matter. The Court directed Plaintiff to email the deposition
transcripts and designations to Defendants’ counsel as soon as possible and
provide an exhibit list that followed the instructions of the Case Management
Order by 9:00 a.m. on May 8, 2017, the morning of trial.
The Plaintiff also requested she be accommodated during the trial by
being allowed to use some sort of cardboard podium so that she could stand
during much of the proceedings. Despite the Plaintiff not having produced
any medical evidence regarding the need for such an accommodation, the
Court agreed to allow the Plaintiff to stand and to use some sort of podium.
For example, the Plaintiff listed as one exhibit “Pre 1/20/14 Employment Medical
Records.” The Plaintiff also included a number of exhibits called “Notice and
corroborating evidence” which are distinguishable only by date. The Plaintiff also
included a number of exhibits that simply referenced a collection of documents, such as
“Documents demonstrating Discharge was due to disability” and “Documents that prove
facts that impute[ ] liability for harassment to the employer.”
The Court offered Plaintiff various options available in the courthouse to
accommodate the Plaintiff's asserted need. The Plaintiff rejected all of the
accommodations the Court offered and insisted upon the use of the
aforementioned cardboard podium. The Court advised the Plaintiff that if she
wished to use the cardboard podium that she needed to email photographs
of it to the Court that afternoon, in order to allow the Court to determine if the
device could pass through security and be used in the courtroom. Despite
the Court’s clear instructions and directions regarding all of the above, the
Plaintiff did not provide anything to the Court or the Defendants, or make any
effort to comply with the Case Management Order deadlines as extended by
At 7:36 a.m. of the morning of trial, the Plaintiff emailed a member of
the Clerk’s Office staff a motion entitled “Emergency Motion for Continuance”
(hereinafter “Fourth Motion to Continue”). [Doc. 105].8 Attached to the
Plaintiff’s motion was a picture purporting to be the files worked on by the
Plaintiff in preparation for trial. [Doc. 105-1].9 The Plaintiff’s motion asserted,
As a pro se litigant, the Plaintiff could file documents with the Court by mailing them to
the Clerk’s Office or presenting them to the Clerk’s office in person. Emailing documents
to members of the Clerk’s office staff is not a permissible method of filing by any litigant,
pro se or represented. Under the circumstances, however, the Court nevertheless
allowed the docketing of the Plaintiff’s motion so that the matter could be addressed on
the record that day.
Notably, Plaintiff never produced a photo of the cardboard podium she wished to use at
trial, yet was able to attach this photo of the files to her emergency motion to continue.
among other things, that as a result of the trial preparation she had been
“forced” to do by the Court, she had exacerbated her original back injury and
had to “seek evaluation and treatment this morning of trial in hope of
continuing at a later day without the pain and risk of further injury.” [Doc. 105
at 2]. The Plaintiff’s motion requested that the matter be continued until she
could “recover adequately to proceed or find competent counsel.” [Id.] The
Plaintiff’s motion provided no medical documentation or physician statement.
At 8:09 a.m. the Plaintiff also left a message on the chambers voicemail
indicating she had emailed the Clerk’s Office and the parties to the case her
Fourth Motion to Continue, and that she was on her way to urgent care.
On Monday, May 8, 2017, at 9:01 a.m., the matter was called for trial
and the Plaintiff failed to appear in Court to prosecute her action. In light of
Plaintiff’s Fourth Motion to Continue, the Court released the jury pool to an
early lunch to see if Plaintiff would appear and withheld ruling on the motion.
In the interim, the Defendants’ objected to the Plaintiff’s motion to continue
and filed their Motion to Dismiss for Failure to Prosecute pursuant to Federal
Rule of Civil Procedure 41(b). [Doc. 107]. The Court received no further
communications or documentation from the Plaintiff, and at no time did
Plaintiff appear to prosecute her action or advocate her motion. The
documents Plaintiff subsequently filed with the Court showed no medical
condition that prohibited her appearance. Upon resumption of the matter
after the lunch break, the Court made inquiries of Defendants’ counsel and
was informed that Plaintiff had not made any further communications with
Defendants’ counsel and that Plaintiff had also failed to provide or exchange
any materials as directed by the Court over the prior weekend or the morning
of trial. The Court then proceeded to address the Plaintiff’s motion to
continue and the Defendants’ motion to dismiss, making lengthy findings on
With regard to Plaintiff’s Fourth Motion to Continue, the Court
addressed each asserted ground in the Plaintiff’s motion. The Plaintiff
asserted as follows in her motion:
1) In Plaintiff’s attempt to follow the Court’s
order to go to trial on May 8, 2017, Plaintiff exceeded
her physical capacity and medical restrictions.
2) This preparation was forced upon her by this
Court that admitted that granting such continuances
were common in most federal jurisdictions but not by
3) As a result of this preparation Plaintiff has an
exacerbation of her original back injury.
4) Any continuation to trial at this point will have
5) There is a Constitutional guarantee of “no
cruel or unusual punishment” or any “trial by torture.”
6) This court was and is aware of the Plaintiff’s
injury and there are ample medical records in the
record in support of this.
7) Even the drive to the Courthouse can easily
exacerbate this condition. (cf. Dr. Rudin’s driving
restitutions on Plaintiff in the Record)
8) Therefore Plaintiff must seek evaluation and
treatment this morning of trial in hope of continuing
at a later day without the pain and risk of further
9) The plaintiff once again reminds this Court
of incontrovertible evidence that defendants
committed felonies by stopping all indemnity and
medical payments WITHOUT a court order, which is
required by North Carolina Statute.
10) This Court can only serve justice if it
considers the opinion of North Carolina Court of
Appeals on withholding benefits after a failed return
to work trial. Celia A. Bell, Employee-Plaintiff v.
Goodyear Tire an Rubber Company, Employer,
Liberty Mutual Insurance Company, Carrier,
efenants No. COA 15-1299 (21 Marcy 2017).
Defendants’ failure to follow the law is the
cause of this delay of trial and have now once again
caused injury to the Plaintiff.
Wherefore Plaintiff requests this trial be
continued until Plaintiff can recover adequately to
proceed or find competent counsel.
In Addition, we wish the Court to take Notice
that once again as happens always and ONLY before
an important Court date, Plaintiff’s NEW printer
“mysteriously” broke on Sunday, May 7.
All medical and treatment records will be
available to the Court upon request.
With regard to the Plaintiff’s claims that she exceeded her medical
restrictions and exacerbated her physical injuries in preparing for trial
(paragraphs 1, 3, 6, 7, and 8 of the Plaintiff’s motion), the Court found that
the medical records referenced in the motion pertained to treatment she
received from 2011 to 2014 and therefore did not address the Plaintiff’s
present medical condition. The Court further found that Plaintiff had failed to
present any documentation or evidence that supported her claims of current
physical incapacity, and that she had never before raised her alleged
physical incapacity as a grounds for continuing the trial despite having made
multiple motions to continue in the past. Noting that the Plaintiff’s stated
reason for not being able to appear for trial was her claimed need to seek
treatment at an urgent care facility, the Court noted that the Plaintiff had
made no mention of any kind of condition or medical diagnosis that required
emergency evaluation or treatment. Therefore, the Court found the Plaintiff
had failed to present any basis from which the Court could find that the
Plaintiff presently had any type of medical condition that would prevent her
from being present for trial.10
With regard to the Plaintiff’s claims that “forcing” her to trial constituted
“cruel or unusual punishment” that would result in “severe” harm to her
(paragraphs 2, 4, and 5 of the Plaintiff’s motion), the Court noted its longstanding policy on setting trial dates well in advance and its expectation that
deadlines set forth in the Case Management Orders would be followed
accordingly. The Court noted that this policy allows for greater efficiency of
the docket and ensures the progress of litigation. While acknowledging that
motions to continue are generally disfavored, the Court noted that it will
always entertain motions to continue which provide a legitimate basis for a
As for the alleged “severe consequences” the Plaintiff
claimed she would suffer if the trial were not continued, the Court found that
that there was no basis in the record to indicate what that harm would be.
With regard to the Plaintiff’s claims of misconduct by the Defendants
(paragraphs 9 and 10 of the Plaintiff’s motion), the Court found that even if
When given the opportunity to present medical evidence showing the Plaintiff’s
condition at the time she went to urgent care on May 8, 2017, the Plaintiff still presented
nothing that would have supported a finding that the Plaintiff’s medical condition was such
that would excuse her attendance.
The Court even set for hearing Plaintiff’s Third Motion to Continue, despite the motion
being filed only six (6) days before trial and the face of the motion appearing to provide
no adequate basis or justification for granting.
such allegations were true, the Defendants’ misconduct did not justify any
lack of preparedness on the part of the Plaintiff and therefore did not warrant
a continuance of the trial. As to the Plaintiff’s bare assertion that her “NEW”
printer had “mysteriously” broken, the Court found that the Plaintiff had
presented nothing to show that there had been any failure of her printer or
what may have been “mysterious” regarding any such failure. As for
Plaintiff’s assertion that printer failures “always and only [occur] before an
important court date,” the Court noted that Plaintiff had provided no support
for this, nor had she previously complained of such. Indeed, the Court
remains unclear as to what assertion the Plaintiff was attempting to make
with regard to her printer, except that she seems to imply that its failure is
somehow the Defendants’ fault.
Lastly, having made the above findings in regard to each of Plaintiff’s
assertions, the Court found that the parties had been directed to appear for
trial, and while the Defendants’ counsel and corporate representatives were
present, the Plaintiff had not appeared. The Court further found that court
had been in session through the morning and reconvened after a lunch break
at 1:30 p.m., but that at no time during that period did the Plaintiff appear or
attempt to contact the Court in order to further advocate her motion or
prosecute her case. Accordingly, the Court found that there was no basis to
grant the Plaintiff’s Fourth Motion to Continue and therefore denied the
Having disposed of Plaintiff’s Fourth Motion to Continue, the Court
proceeded to address the Defendants’ motion to dismiss and made lengthy
findings pertinent to the factors under Federal Rule of Civil Procedure 41(b).
Specifically, the Court found that the Plaintiff had missed the deadlines under
the Case Management Order for: designations of deposition excerpts for use
at trial, the filing of motions in limine and other evidentiary motions, and the
exchange of exhibits and exhibits list, despite multiple extensions to these
deadlines. The Court also found that the Plaintiff had not followed the Court’s
directions with regard to the deposition designations from another case,
alleged recordings of conversations, or the request for accommodations.
The Court also noted that it had previously encouraged the Plaintiff at
the summary judgment hearing of this matter to seek counsel because
Plaintiff’s preparation was clearly inadequate to be able to move forward with
her case at trial. Indeed, at the summary judgment hearing in March 2017,
the Court had admonished Plaintiff to prepare in earnest for the trial or find
counsel, but there had been no evidence that the Plaintiff had made any
serious effort to prepare for the trial in the several weeks since that hearing.
The Court noted that despite the denial of multiple motions to continue, the
Plaintiff made no discernable progress in preparing for trial.
The Court also found that the Plaintiff continued to assert and make
allegations that the Defendants have committed various types of misconduct,
(which in the Plaintiff’s mind apparently absolved her from the need to
prepare for trial) without presenting any evidence to support these
allegations. The Court found that Plaintiff had been able to spend substantial
time and effort preparing and advocating multiple motions to continue but
seemed to be unable to expend the same effort towards preparing
arguments and documents for the Court’s final pretrial conference. In fact,
the one filing the Plaintiff made by the deadline set forth in the Case
Management Order, namely her witness list, was prepared at the direction
of the Court during a break at the May 5, 2017, hearing on one of the
Plaintiff’s motions to continue.12 Moreover, until the Plaintiff’s final motion to
continue, none of the motions to continue were based on any physical
limitations. Indeed, the Court noted, the Plaintiff’s abilities and demeanor
indicated she appeared to be physically capable of proceeding with trial as
late as the hearing held on May 5, 2017.
Even though the witness list was filed timely, it was clearly inadequate. Although the
case involved issues of disability discrimination, the Plaintiff did not list a medical expert
or healthcare provider as a witness and had not subpoenaed any witnesses.
With regard to the Defendants, the Court found the Defendants’
counsel had met all deadlines as called for in the Case Management Order
and appeared with the Defendants’ corporate representatives on May 8,
2017, ready to proceed for trial. Furthermore, the Defendants brought
witnesses for the trial, including witnesses who had flown in from the state of
Florida and were present in the courtroom and prepared to testify at trial.
Upon making the above lengthy findings at the hearing, the Court
proceeded to consider the factors under Rule 41(b), ruling that each factor
weighed against the Plaintiff and in favor of the Defendants. The Court
therefore granted the Defendants’ motion to dismiss.
The Court then
summoned the jury pool that was called and assembled at the courthouse
for the purpose of this trial and discharged them from further duty.
While the Court orally granted the Defendants’ motion to dismiss, the
Court withheld determination of whether the dismissal was to be with or
without prejudice. The Court directed the parties that they would be allowed
to submit briefs regarding the characterization of the dismissal. [Minute
Order dated May 8, 2017]. The Court instructed that the briefs were to be
submitted by the Defendants by May 19, 2017 and the Plaintiff by May 26,
2017, and after reviewing the submitted arguments, the Court would then
enter a written order disposing of whether the dismissal would be with or
without prejudice. [Id.]
On May 19, 2017, the Defendants timely filed their Memorandum of
Law in Support of Characterizing the Prior Dismissal of Plaintiff’s Complaint
as “With Prejudice.” [Doc. 109]. On May 30, 2017, the Plaintiff made three
simultaneous filings entitled: “Plaintiff’s Motion to Vacate Court’s Order Of
5.8.17 Denying Plaintiff’s Request for a Continuance And then, Grant a
Continuance” [Doc. 110]; “Plaintiff’s Motion to Vacate Court’s Order Of
5.8.17 To Dismiss Plaintiff’s Case On Grounds that Defendants Committed
Fraud upon the Court” [Doc. 111]; and “Plaintiff’s Response to Martin K.
Reidinger’s 5.8.2017 Order to Submit a Brief On Whether His Dismissal of
Plaintiff’s Case Should be With Or Without Prejudice.” [Doc. 112]. On June
13, 2017, the Defendants filed their responses and reply to Plaintiff’s filings.
[Docs. 113, 114, 115]. There have been no replies filed by the Plaintiff.
Having been fully briefed by the parties, this matter is now ripe for
Dismissal With Prejudice
Federal Rule of Civil Procedure 41(b) states:
If the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.
Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any
dismissal not under this rule—except one for lack of
jurisdiction, improper venue, or failure to join a party
under Rule 19—operates as an adjudication on the
Fed. R. Civ. P. 41(b).
The Federal Rules of Civil Procedure
recognize that courts must have the authority to
control litigation before them, and this authority
includes the power to order dismissal of an action for
failure to comply with court orders. In this case, [the
Plaintiff] failed to respond to a specific directive from
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.), cert. denied, 493 U.S. 1084
When dismissing an action pursuant to Rule 41(b), the Court should
consider four factors in determining whether that dismissal should be with
prejudice: (1) the personal responsibility of the plaintiff; (2) the prejudice to
the defendant; (3) a history of deliberately proceeding in a dilatory manner;
and (4) the availability of any less drastic remedy. Ballard, 882 F.2d at 95
(citing Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.1982)).
These four factors are not a rigid test and the propriety of a dismissal
depends on the particular circumstances of the case. Id.
The Court granted the Defendants’ Motion to Dismiss for Failure to
Prosecute [Doc. 107] and directed the parties to submit briefs on the issue
of whether the dismissal of this matter should be characterized as with or
without prejudice. In addition, the Court also made lengthy findings on the
record that remain applicable in the determination of this matter in light of the
parties’ arguments, the Plaintiff’s motions, and the history of this proceeding
as previously described.
Personal Responsibility of the Plaintiff
The Plaintiff was personally responsible for the preparation of her case
as she chose to proceed pro se. The Case Management Order and the
numerous admonitions by the Court make clear that Plaintiff was well aware
of her responsibilities in this proceeding. The Plaintiff made no serious effort
to secure counsel despite having been warned well in advance how difficult
the trial preparation would be. The Plaintiff also made no serious effort to
prepare for the trial of this matter thereafter. Clearly, all of the Plaintiff’s
failures throughout this entire matter are the personal responsibility of the
Plaintiff. This is particularly true considering the Plaintiff, although
proceeding pro se, had demonstrated before the trial date her ability to file
pleadings, motions, objections, responses, and replies. [See Docs. 1, 2, 37,
51, 59, 64, 72, 80, 85, 95, 101, 105].
The Plaintiff’s filings subsequent to the dismissal of her action have
further shown that Plaintiff attempts to absolve herself of responsibility by
disparaging the Defendants and the Court. [See Docs. 110, 111, 112]. The
Plaintiff continues to cavalierly make accusations of fraud, misconduct, and
even potential murder, without presenting any evidence thereof. For
example, the Plaintiff asserts:
It appears Defendants may have even
committed murder to prevail in this case and
intimidate Plaintiff. This must and will be addressed
in the proper venue, yet impacts on the instant case.
The failure of Defendants to deny their association
with the Clinton Foundation, the failure of Defendants
to list ALL their corporate affiliations, the failure of
Defendants to produce true financial records impacts
this case. It has been said the Eye of Justice sees all,
and a world judgment for Defendants will be at hand
as the case is made more public. If Martin K.
Reidinger has any shred of integrity, he would
address the criminal misconduct of Defendants, and
would continue the case until the next Court
Calendar. This Court cannot and must not introduce
the precedent of “Reidinger’s Trial by Torture.”
[Doc. 112 at ¶ 23].
Therefore, Plaintiff’s personal responsibility for failing to comply with
the Court’s orders weighs heavily in favor of dismissing this matter with
Prejudice to the Defendants
The Defendants incurred substantial costs in preparing for trial, as well
as addressing all of the issues arising from Plaintiff’s multiple motions to
continue and her failure to comply with the Court’s orders leading up to the
trial date. Despite the numerous last minute hearings, and Plaintiff’s lack of
compliance with the mandatory deadlines, the Defendants met all deadlines
as called for in the Case Management Order and appeared on May 8, 2017,
ready to proceed with the trial. Furthermore, the Defendants brought several
witnesses for the trial, including witnesses who had flown in from Florida and
were present in the courtroom and prepared to testify at trial.
Therefore, the factor regarding the prejudice incurred by the
Defendants weighs heavily in favor of dismissing this matter with prejudice.
History of Deliberately Proceeding in a Dilatory Manner
The Plaintiff has exhibited an extensive history of deliberately
proceeding in a dilatory fashion. As described in detail above, the Plaintiff
repeatedly failed to comply with the Court’s deadlines and even when she
was shown leniency and those deadlines were extended, she failed to
comply with the directives of the Court. The Plaintiff’s actions throughout this
case and her multiple failures to comply with even the most basic deadlines,
make clear that the Plaintiff had no intention of proceeding to the trial on the
May 8, 2017 trial date, despite Plaintiff’s knowledge of the trial date for almost
a year, the denial of multiple motions to continue, and the repeated
admonitions by the Court to prepare for trial.
The Plaintiff has a history of ignoring the Court’s authority to set
deadlines in this matter, including the trial date, and would justify her
disregard by making completely unsupported allegations. For example, in
Plaintiff’s Third Motion to Continue she asserted:
The defendants herein are also spoiling and
adulterating documents in this cause and preparing
to bring them to trial to confound the jury. These
blatant violations of Plaintiff’s substantive right to due
process, to life, liberty, and property, to be secure in
her person, house, papers, and effects are now, have
been and will continue to be issues that this
Honorable Court must resolve before any
[Doc. 101 at ¶ 10].
The Plaintiff’s last-minute filing of her Fourth Motion to Continue was
merely another chapter in the Plaintiff’s pattern of deliberately proceeding in
a dilatory and obstructive manner. The medical records submitted by the
Plaintiff subsequent to her Fourth Motion to Continue (including her visit to
urgent care the morning of the trial) show that the Plaintiff was not faced with
an emergency and the records themselves fail to reflect any restrictions that
would have hindered the Plaintiff from appearing on the day of trial. Despite
Plaintiff’s apparent ability to have come to Court on the day of trial, she made
no efforts to appear and did not even attempt any further communications
with the Court after having merely left a voicemail on the chambers telephone
some 51 minutes before the case was to be called for trial. Further, despite
the Plaintiff’s claims in her Fourth Motion to Continue to have worked on
preparing her case for the trial date, she has still failed to provide the Court
any documentation or exhibits that indicate her asserted preparation for trial.
Instead, the Plaintiff makes bold statements and allegations without
presentation of any support, and expects the Court to simply acquiesce in
order to allow the Plaintiff to prolong this matter and proceed at her leisure.
It is also noted that the Court summoned a jury pool for the trial of this
matter, and those citizens appeared on May 8, 2017, in order to discharge
their civic duty. These members of our community were greatly
inconvenienced by the Plaintiff’s antics, and the taxpayers incurred a
Therefore, the Plaintiff’s history of proceeding in a dilatory manner
weighs heavily in favor of dismissing this matter with prejudice.
Less Drastic Remedy
This action was not dismissed as a sanction for the Plaintiff’s
misconduct.13 It was dismissed because the Plaintiff failed to appear to
prosecute her case when it was duly called for trial. This factor regarding
the consideration of less drastic sanctions is instructive in weighing whether
the dismissal should be with or without prejudice.
The Court “may take sanctions of a less drastic nature, such as
payment of costs, attorneys' fees, or dismissal without prejudice.” Chandler
Leasing Corp., 669 F.2d at 921. The Court, however, “must do more than
decide that a less severe sanction exists, for there is no doubt that such will
always be the case. The relevant inquiry is whether or not a lesser sanction
is feasible and appropriate in view of the history of each case and the
plaintiff's conduct.” Zaczek v. Fauquier Cty., Va., 764 F. Supp. 1071, 1078
(E.D. Va. 1991), aff'd, 16 F.3d 414 (4th Cir. 1993).
The Court considers first the option of dismissing the case without
prejudice and taxing the costs and fees against the Plaintiff. In this case,
particularly in light of the Plaintiff’s representations as to her own financial
condition, assessing costs and fees against the Plaintiff would be a futile act.
The Court makes no ruling on whether the Plaintiff’s misconduct in this case warrants
In fact, given Plaintiff’s claimed financial condition, entering a substantial
judgment against Plaintiff for costs and attorney fees is arguably a harsher
sanction than dismissal with prejudice.14
The Court next considers the
alternative of dismissing the case without prejudice but excluding certain
witnesses or evidence from any ultimate trial. In this matter, however, the
Plaintiff disregarded the Court’s orders, failed to prepare for trial, and did not
even subpoena witnesses to trial. Therefore, excluding witnesses or
evidence would be equally unavailing. Such sanctions would be essentially
useless and have no impact on the Plaintiff.
The Court needs to control its docket, to not only move cases forward
to conclusion but also to manage the docket in a manner that does not
disadvantage any party or parties in other cases. The Court, in an effort to
move this matter forward, afforded the Plaintiff extraordinary leniency
throughout this matter but the Plaintiff made no serious effort to comply with
the directives and orders of the Court. There is no reason to believe Plaintiff
would conduct herself any differently or prepare her case any more
expeditiously were this matter to be dismissed without prejudice. Moreover,
In the same vein, if the Court were to enter a dismissal without prejudice and tax the
costs and fees against the Plaintiff, she would then be required to pay those costs and
fees before she could refile. See Fed. R. Civ P. 41(d). Pragmatically, this would have
the same effect as a dismissal with prejudice, except with the added detriment to the
Plaintiff of having a judgment against her.
there is no reason to believe that the Plaintiff would not again disrupt the
docket by making frivolous filings, bold and defamatory accusations, and
baseless motions to continue. This is particularly true in light of Plaintiff’s
various assertions contained in her subsequent filings in response to the
dismissal of her case, such as:
Now Plaintiff, injured not just by Defendants for
close to 6 years, but also by the Court in their
disregard for Plaintiff’s right to due process and right
for accommodation for physical restrictions and
poverty in their denial of access to justice, are forcing
her to yet again ‘jump through hoops’ that are
causing further injury.
[Doc. 110 at ¶ 19].
Plaintiff did have the help of her husband,
characterized by Martin K. Reidinger as ‘a
hindrance.’ Mr. Kotsias helped Plaintiff read the law,
helped research the law, helped prepare her for
hearings, gave guidance and edited her brief. When
she was incapacitated in the final week and hours
before the trial was to commence, he actually typed
Plaintiff’s Motion for Continuance. Still the ‘playing
field’ is not level. Mr. Kotsias himself has physical
limitations, having been poisoned during his work
and 4 decade fight against corruption and organized
crime, which includes the Defendants in the instant
case. The Court refuses to allow him to act as
Plaintiff’s co-counsel,15 and stacks the deck against
her with several law firms, scores of attorneys, and
then ignores the criminal misconduct of defendants.
The Plaintiff’s husband is not a licensed attorney.
[Doc. 112 at ¶ 16]. Given Plaintiff’s willful disregard of the Court’s orders and
their purpose, there is little reason to believe any available conclusion other
than a dismissal with prejudice would be appropriate. The Court has
considered a lesser remedy of dismissing the Plaintiff’s matter without
prejudice. However, the history of this matter demonstrates that the Plaintiff
has no regard for the authority of the Court, and dismissing this matter
without prejudice would be ineffective and empower the Plaintiff to further
undermine the Court’s authority.
Therefore, the lack of any viable alternative remedy weighs heavily in
favor of dismissing this matter with prejudice.
Accordingly, in light of all of the factors under Rule 41(b), the Court
concludes that this matter should be dismissed with prejudice.
The Plaintiff filed two motions simultaneously with her brief addressing
the question of the nature of the dismissal. The Plaintiff’s motions are entitled
“Motion to Vacate Court’s Order Of 5.8.17 Denying Plaintiff’s Request for a
Continuance And then, Grant a Continuance” and “Motion to Vacate Court’s
Order Of 5.8.17 To Dismiss Plaintiff’s Case On Grounds that Defendants
Committed Fraud upon the Court.” [Docs. 110, 111].
The Plaintiff’s motions make the same familiar assertions that have
been prevalent throughout Plaintiff’s filings in this matter and continue the
pattern of making these bold accusations without presenting any support
Upon review of the Plaintiff’s motions, the Court determines they are
without merit. For the reasons previously stated, the Plaintiff has shown no
good cause for a continuance and the Plaintiff has presented no evidence of
any fraud perpetrated by the Defendants upon the Court. Accordingly, the
Plaintiff’s motions are denied.
IT IS, THEREFORE, ORDERED, that the Defendants’ Motion for
Dismissal for Failure to Prosecute [Doc. 107] is GRANTED and this action is
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Plaintiff’s motions [Docs. 110,
111] are DENIED.
IT IS SO ORDERED.
Signed: August 8, 2017
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