Gillmann v. Fisher et al
ORDER re 21 Order to Show Cause filed by Fred Gillmann. The Court deems that it is not an appropriate sanction to dismiss this case with prejudice. It does, however, admonish both Plaintiff and his counsel that future delays in this case or failure to comply with the Courts orders or the rules will warrant severe sanctionsquite possibly dismissal. Signed by Judge Robert Pitman. (tb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SCOTT FISHER & KRISTI FISHER,
This court entered a show cause order on May 23, 2017, after it ordered the parties to submit
a revised joint proposed scheduling order by May 19, 2017, and none was submitted. The Court had
issued the order requiring the submission of the revised proposed scheduling order the morning of a
planned initial pretrial conference with the parties. The teleconference dial-in number provided by
Plaintiff did not work; thus the call did not occur. Rather than rescheduling the call, the Court issued
an order addressing what the call likely would have—it ordered the parties to confer and fill in stillmissing dates from their proposed scheduling order so that the initial pretrial conference could be
reset and the parties could then discuss the scheduling of trial and any other issues.
Plaintiff submitted the revised proposed scheduling order on May 24, 2017, five days after
the Court ordered it to be submitted. He then filed a response to the Court’s order to show cause on
May 26, 2017—the day it was due, but a few minutes after the Court’s 5:00 p.m. deadline.
In his response to the show cause order, Plaintiff first explains that he fully complied with
the Court’s order to set up a teleconference line and provide the dial-in information to the Court.
Plaintiff’s counsel explains that the fact that the dial-in number did not work was either caused by
“user error”—meaning the Court staff’s error—or “network error.” (Show Cause Resp., Dkt. 24, at
2–3). His declaration states: “I am not responsible for the Court’s or [Defense counsel’s] inability to
connect to the conference call.” (Id. at Ex. 1 ¶ 7).
Plaintiff’s counsel’s own submission demonstrates this is not true. Plaintiff’s counsel
submitted both a copy of the call information provided to him by the conference call service
provider he booked and a copy of the call information he provided the Court. While he provided
the correct access code to the Court, he provided an incorrect dial-in number. The information from
the provider indicates that the dial-in number is 515-739-1285, (id. at Ex. 1, at 5), but the phone
number provided to the Court was 515-739-1185, (id. at Ex. 1, at 7). Typographical errors like this
are not completely avoidable, and certainly, the Court would not seek to prejudice a party because of
a single mistyped digit. The Court takes much greater issue, however, with Plaintiff’s counsel’s
response—he failed to check whether he provided the Court all of the right call information even
after he was informed that it did not work, he refused to acknowledge that he might have been
responsible for the user error, and he placed the blame for the error on others, including this Court’s
Next, Plaintiff’s counsel explains that his eyesight is failing, causing him to miss the
automatically generated email with the Court’s May 17, 2017 order directing him to file a revised
proposed scheduling order by May 19, 2017, approximately two and a half business days later. He
explains that he did not see the order until after the deadline had passed, that there was “no
temporary solution available” to his declining eyesight, and that he “continues to struggle with vision
problems and has an appointment to return to see his retinal specialist on Friday, June 2, 2017.” (Id.
at 5). He asserts that his “noncompliance with the order of May 17, 2017 was not intentional or even
The Court wishes to express its sympathy to Plaintiff’s counsel regarding the troubles with
his eyesight—the situation he is in is must be frustrating and challenging. Further, the Court accepts
that there was likely nothing more Plaintiff’s counsel could do to correct his eyesight over the last
several weeks. However, it is unclear to the Court that Plaintiff’s counsel truly had no other
alternatives to ensure that his obligations to the Court and to his client were upheld. When Plaintiff’s
counsel first recognized that his vision might be a problem he could have, for example,
recommended his client obtain substitute counsel, engaged someone to assist him in regularly
reviewing his emails and submissions, motioned for a stay in the case, or motioned for some sort of
accommodation from the Court. Arguably, given Plaintiff’s counsel’s poor eyesight and inability to
read his emails, some such measure may have been required of Plaintiff’s counsel to ensure that he
complied with his obligations. See Tex. Disciplinary. Rules Prof. Conduct 1.01 (“A lawyer shall not
accept or continue employment in a legal matter which the lawyer knows or should know is beyond
the lawyer’s competence.”).
Third, Plaintiff’s counsel explains that his decision to leave open certain dates in the initial
submission of his proposed scheduling order was “at the specific direction of one of the Court’s law
clerks.” (Show Cause Resp., Dkt. 24, at 6). While this may be true, Plaintiff’s counsel’s more
complete description of the conversation is inconsistent with that account. He explains that “[a]
person who identified herself/himself . . . as a law clerk to Judge Pitman directed [Plaintiff’s counsel]
to supply open dates on the proposed scheduling timeline, and counsel did as he was instructed to
do.” (Id. (emphasis added)). This account suggests that the law clerk was instructing Plaintiff’s
counsel to supply dates that are left blank in the form version of the proposed scheduling order.
Further, Plaintiff’s counsel claims that he contacted the Court’s staff in order to determine in
what form the Court wanted to receive the proposed scheduling order. The Court’s order for
submission of a proposed pretrial order directs parties to where this information is available online
and provides a form submission. Notably, even though Plaintiff’s counsel was expressly ordered to
use this form in submitting a revised scheduling order, he did not do so, but resubmitted the old
scheduling order with all open dates, including the final pretrial conference and trial date, filled in.
Had Plaintiff’s counsel accessed the Court’s form order, he would have seen instructions that the
parties not complete the part of the order providing a final pretrial conference and trial date. Thus,
while Plaintiff’s counsel again seeks to blame his failure to comply with the Court’s directions on the
Court’s staff, instead it is his failure to read the Court’s orders that appears to be to blame.
Finally, Plaintiff argues that this case should not be dismissed because of its dissimilarities
with Link v. Wabash R.R., 370 U.S. 626, 630 (1962). Primarily, he seems to argue that the Supreme
Court in Link “held” that application of Rule 41(b), which authorizes the Court to dismiss a case for
failure to comply with a court order, is restricted to cases that have remained dormant for an
extended period of time and are very old. (Show Cause Resp., Dkt. 24, at 7). As an initial matter, this
is not the holding of Link. That case addressed the issue of whether a case could be dismissed for
lack of prosecution without providing notice to the plaintiff. In it, the Supreme Court held that “a
District Court may dismiss a complaint for failure to prosecute even without affording notice of its
intention to do so or providing an adversary hearing before acting.” Link, 370 U.S. at 633. And
notably, the case was not dormant at the time it was dismissed—instead it was dismissed soon after
the plaintiff failed to appear for a scheduled conference, and, as the dissent noted, was “a very live
[case] from the date it was filed right up to [the Supreme Court’s ruling].” Id. at 639 (Black, J.,
Regardless, at this time, the Court deems that it is not an appropriate sanction to dismiss this
case with prejudice. It does, however, admonish both Plaintiff and his counsel that future delays in
this case or failure to comply with the Court’s orders or the rules will warrant severe sanctions—
quite possibly dismissal. Plaintiff has, with little justifiable excuse, repeatedly failed to comply with
the rules and the Court’s orders, and Plaintiff’s counsel has generally refused to take responsibility
for those failures or take appropriate measures to prevent them. These delays waste the Court’s time
and resources. The Court warns Plaintiff’s counsel that at a certain point, his failure to obtain
appropriate assistance in light of his failing eyesight may be appropriately considered negligent or
willful conduct. Finally, the Court advises Plaintiff and Plaintiff’s counsel that it will issue no further
orders to show cause if delays or instances of non-compliance arise, but instead will implement the
appropriate sanction without further notice.
SIGNED on May 31, 2017.
UNITED STATES DISTRICT JUDGE
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