Starkweather v. Carolina Veg Inc et al

Filing 100

OPINION and ORDER denying 99 Motion for Extension of Time; denying 99 Motion to Set Aside Default. Signed by Honorable Cameron McGowan Currie on 11/1/2011.(cbru, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Robert Starkweather d/b/a Star Farms,

)
)
Plaintiff,
)
)
-versus)
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Carolina Veg, Inc., James Brittain, and
)
Phillip C. Jones, each individually,
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Defendants.
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____________________________________)
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Carolina Veg, Inc.,
)
)
Counter-Plaintiff,
)
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-versus)
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Robert Starkweather d/b/a Star Farms,
)
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Counter-Defendant.
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____________________________________)

Civil Action Number: 3:10-1978-CMC

OPINION and ORDER

On October 26, 2011, the court received a letter from Plaintiff and Counter-Defendant Robert
Starkweather (“Plaintiff”). Because the letter seeks action by the court, the court construes it as a
motion and directs the Clerk of Court to enter it as a motion for extension of time and relief from
default.
There is no indication that Plaintiff forwarded a copy of this letter to Defendants’ counsel.
Thus, the “motion” was not properly served. In this one instance, the court cures this deficiency by
serving a copy on Defendants through the court’s electronic filing system. Plaintiff is, however,
directed that it is his responsibility to ensure proper service of any future submission to the court.
Plaintiff seeks two forms of relief. First, he requests an extension of time because he is

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“without counsel and currently seeking another one.” Plaintiff also requests that the court set aside
any order dismissing the case if an order of dismissal has been entered. The court considers these
requests as (1) a motion to postpone the November 28, 2011 hearing on Defendant Carolina Veg,
Inc.’s (“Carolina Veg, Inc.”) counterclaims, and (2) a motion for relief from the court’s October 4,
2011 order dismissing Plaintiff’s claims with prejudice. Plaintiff was given notice both of the
dismissal of his claims and the hearing date on Carolina Veg, Inc.’s counterclaims by order entered
October 4, 2011. Dkt. No. 93.1 For the reasons stated below, the court denies Plaintiff’s motions.

BACKGROUND
The following outlines the relevant history of this case:
•

July 28, 2010

Through counsel, Plaintiff filed a complaint asserting causes of action
under the Perishable Agricultural Commodities Act (“PACA”), 7
U.S.C. § 499e, as well as certain state law claims.2 Attorneys
Jonathan Milling and Priscilla Grannis signed the complaint. Dkt.
No. 1.

•

September 22, 2010

Defendants answered the complaint and Carolina Veg, Inc. asserted
counterclaims3 of breach of contract and unjust enrichment against
Plaintiff. Dkt. No. 35.

•

October 8, 2010

The court entered a scheduling order. Dkt. No. 39.

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By order dated October 4, 2011, the court dismissed Plaintiff’s claims with prejudice for
failure to comply with the court’s deadlines. A separate bench trial notice was issued on that same
date, scheduling a trial on Carolina Veg, Inc.’s counterclaims for November 28, 2011 at 1:30 p.m.
That notice directed the parties to furnish pretrial briefs, including a detailed exhibit list, no later
than November 14, 2011. The court mailed copies of the dismissal order and hearing notice to
Plaintiff on October 4, 2011, using his last known address as provided to the court. Plaintiff has,
therefore, been on notice of the dismissal of his claims and the hearing on Carolina Veg’s
counterclaims since early October 2011.
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Plaintiff waived his right to a jury trial as to any state law claims. Dkt. No. 2 at 1.

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Defendants also waived their right to a jury trial. Dkt. No. 37 at 2.
2

•

October 13, 2010

Plaintiff answered the counterclaims. Dkt. No. 40.

•

February 23, 2011

The parties participated in mediation and appeared to make progress.
However, the case was not settled. Dkt. No. 50.

•

March 21, 2011

The court entered a consent amended scheduling order, which set a
trial date on or after November 15, 2011. Dkt. No. 54.

•

June 7, 2011

Jonathan Milling and Priscilla Grannis filed a motion to withdraw as
counsel for Plaintiff. Counsel stated that Plaintiff failed to meet his
financial obligations to counsel and failed to cooperate and provide
assistance to counsel regarding his case. Dkt. No. 60.

•

June 28, 2011

After the deadline for responding to the motion to withdraw expired
without any objection from Plaintiff, the court granted the motion,
and referred the case to a Magistrate Judge. The court also directed
Plaintiff to notify the Clerk of Court in writing of any address change.
Dkt. No. 69. Plaintiff was mailed a copy of the order granting the
motion to withdraw as counsel, referring the case to a Magistrate
Judge, and requiring Plaintiff to notify the Clerk of any change of
address. Dkt. No. 71.

•

June 29, 2011

The court entered an order withdrawing its reference to a Magistrate
Judge. Because Plaintiff was then proceeding without counsel, the
court also reminded “Plaintiff . . . that failure to comply with
deadlines pertaining to trial contained in the Consent Amended
Scheduling Order entered March 21, 2011, . . . and deadlines
contained in other orders and/or notices and/or failure to appear for
trial may result in dismissal of this matter with prejudice.” Dkt. No.
72. A copy of this order was mailed to Plaintiff. Dkt. No. 73.

•

July 29, 2011

Defendants filed a motion in limine (Dkt. No. 77) and a certificate of
service stating that Defendant had mailed Plaintiff a copy of
Defendants’ motion in limine at the address provided by Plaintiff
(Dkt. No. 79).

•

August 17, 2011

After the deadline for opposing Defendants’ motion in limine expired
without any response, the court granted Defendants’ motion as
unopposed. Dkt. No. 83. A copy of this order was mailed to
Plaintiff. Dkt. No. 84.

•

August 23, 2011

Defendants filed pretrial disclosures, including a certificate of service
stating that Plaintiff was mailed a copy of the disclosures at the
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address provided by Plaintiff. Dkt. No. 85. Plaintiff did not file any
pretrial disclosures, despite the directives to do so in the scheduling
order.
•

September 9, 2011

The deadline passed for Plaintiff to object to Defendants’ pretrial
disclosures. Dkt. No. 86.

•

September 14, 2011 The court directed Plaintiff to show cause why Plaintiff’s claims
should not be dismissed for failure to comply with deadlines
contained in the consent amended scheduling order. Dkt. No. 87.
The court mailed a copy of the order to show cause to Plaintiff. Dkt.
No. 88.

•

October 4, 2011

After the deadline for responding to the rule to show cause order
expired without response, the court dismissed Plaintiff’s claims with
prejudice for failure to comply with the court’s directives and
deadlines. Dkt. No. 93. The court also scheduled a bench trial on
Carolina Veg, Inc’s counterclaims for November 28, 2011 at 1:30
p.m. Dkt. No. 95. The court mailed a copy of the order dismissing
Plaintiff’s claims and the notice of hearing to Plaintiff. Dkt. No. 96.
DISCUSSION

The court has provided Plaintiff with every opportunity to advance his case on his own
behalf (proceed “pro se”) following his counsel’s withdrawal, by mailing him copies of orders,
reminding him of his duties, and warning him of deficiencies through issuance of a rule to show
cause order. Despite these actions, Plaintiff has done nothing to advance his case, respond to
Defendants’ motion, comply with deadlines, or show cause why his claims should not be dismissed
for non-compliance with court orders and deadlines. Nothing in Plaintiff’s present filing suggests
any excuse for these failures.4 Under these circumstances, the court will not relieve Plaintiff from

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Plaintiff’s letter bears a return address of 875 8th St. SE, Naples, FL 34117. Plaintiff’s
address on file with the Clerk of Court is Post Office Box 339, Immokalee, FL 34113. This raises
some concern that Plaintiff may not have received all documents previously mailed to him, although
this is far from certain as he may use both a post office box and street address. He could also have
received forwarded mail if he closed his post office box. In any event, it is Plaintiff’s obligation to
keep the court informed of his address as noted in this court’s earlier orders. Out of an abundance
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default as to his claims.
Neither will the court postpone the November 28, 2011 hearing on Carolina Veg, Inc.’s
counterclaims. Plaintiff has had four months to retain counsel since his former attorneys were
allowed to withdraw. He was also sent notice of the hearing nearly two months in advance of the
hearing date. While Plaintiff asks for additional time to obtain counsel, he does not indicate that he
has made an effort to obtain counsel during the intervening period. Neither does he suggest any
likelihood that he will be able to obtain replacement counsel if additional time is granted. Plaintiff
is certainly free either to obtain counsel before the November 28, 2011 hearing or to appear on his
own behalf (without counsel) at that hearing. The court will not, however, delay that hearing even
if counsel is retained.5
For the reasons set forth above, the court denies Plaintiff’s motion for relief from the court’s
November 4, 2011 order dismissing Plaintiff’s claims with prejudice, and denies Plaintiff’s motion
to postpone the November 28, 2011 hearing on Carolina Veg, Inc.’s counterclaims.
The court reminds the parties that a bench trial is scheduled for November 28, 2011 at 1:30
p.m. in Courtroom # 2 at the Matthew J. Perry Court House, 901 Richland Street, Columbia, South
Carolina. The trial will address only Carolina Veg, Inc.’s counterclaims and evidence will be
limited as set forth in Dkt. No. 83 (granting Defendants’ unopposed motion in limine, Dkt. No. 77).
The parties are directed to furnish the court pretrial briefs (including exhibit lists) no later than

of caution, the court will mail a copy of THIS ORDER to both addresses. Plaintiff is, however,
WARNED that the court will not mail any future filings to the Naples address unless Plaintiff
advises the court of a change of address.
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The court notes that Carolina Veg, Inc. sought to shorten the time for the hearing. Dkt. No.
89. The court denied that request based, in part, on the parties’ prior agreement to a scheduling
order which set a “not-before date” for trial. Dkt. No. 90.
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November 14, 2011, with the evidence limited as indicated above. Pretrial briefs shall be filed with
the Clerk of Court as part of the public record and served on opposing parties.
IT IS SO ORDERED.

S/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
UNITED STATES DISTRICT JUDGE
Columbia, South Carolina
November 1, 2011

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