Johnson v. Wang et al

Filing 43

ORDER re 42 Response to Order to Show Cause filed by Donald P Wang. The court DECLINES to enter default at this time and ORDERS the parties to file an agreed proposed pretrial order no later than Friday, July 27, 2018, at 12:00 p.m. Mr. Wang's response to the imposition of sanctions is due no later than Thursday, August 2, 2018, at 12:00 p.m. Signed by Judge James L. Robart. (PM)

Case 2:16-cv-01738-JLR Document 43 Filed 07/25/18 Page 1 of 5

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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GEORGE JOHNSON,

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CASE NO. C16-1738JLR
ORDER

Plaintiff,

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v.
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DONALD P. WANG, et al.,

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Defendants.

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I.

INTRODUCTION

Before the court is in personam Defendant Donald P. Wang’s response to the

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court’s July 23, 2018, order to show cause. (Resp. (Dkt. # 42).) Mr. Wang is proceeding

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pro se. (See Dkt.) The court has considered Mr. Wang’s response, the relevant portions

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of the record, and the applicable law. Being fully advised, the court DECLINES to enter

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default and ORDERS the parties to file an agreed pretrial order no later than Friday, July

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27, 2018, at 12:00 p.m. The matter of sanctions remains pending. (See OSC (Dkt. # 39).)

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ORDER - 1

Case 2:16-cv-01738-JLR Document 43 Filed 07/25/18 Page 2 of 5

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II.

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BACKGROUND

On July 23, 2018, the court held a pretrial conference in this matter, and Mr. Wang

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did not appear. (See 7/23/18 Min. Entry (Dkt. # 38).) Counsel for Plaintiff George

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Johnson represented that based on their conversations with Mr. Wang, Mr. Wang was

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aware of the conference and his need to attend. Moreover, the court notified Mr. Wang

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of the conference date and the potential consequences for failing to appear. (See Sched.

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Order (Dkt. # 23); 7/11/18 Order (Dkt. # 37) (citing Local Rules W.D. Wash. LCR

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11(c)); Dkt. (6/27/18 entry)); Local Rules W.D. Wash. LCR 11(c) (stating that the court

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may consider a failure to “appear at [the] pretrial conference . . . an abandonment or

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failure to prosecute or defend diligently, and judgment may be entered against that

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party”). In addition, instead of filing an agreed proposed pretrial order as the court’s

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scheduling order directs, Mr. Wang filed his own proposal a day late. (See Sched. Order

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at 2 (setting July 23, 2018, as the date for the parties’ agreed pretrial order); Def. Pretrial

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Order (Dkt. # 41) (filed on July 24, 2018).) Because of his failure to appear, the court

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ordered Mr. Wang to show cause why the court should not enter default against him and

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issue sanctions of $2,000.00. (See OSC at 2-3.)

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In addition to failing to appear, Mr. Wang has displayed a habit of blaming

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others—his former attorney, the opposing party, and the court—for his untimeliness. For

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example, in moving to set aside default earlier in the case, Mr. Wang contended that he

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had not timely answered the complaint because of his prior attorney. (Default Resp.

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(Dkt. # 18) at 2-3.) Mr. Wang now blames opposing counsel for his late-filed proposed

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Case 2:16-cv-01738-JLR Document 43 Filed 07/25/18 Page 3 of 5

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pretrial order. (Def. Pretrial Order at 1 (stating that “counsel for [Mr. Johnson] is

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unwilling or was unable to incorporate [Mr. Wang’s] latest changes”).)

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On July 24, 2018, Mr. Wang responded to the order to show cause regarding the

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issue of default. (See Resp.) In addition to reciting the applicable legal standards, Mr.

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Wang states that his failure to attend was nothing “more than a simple misreading of

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[court] orders that were changing fairly rapidly.” (Id. at 3.) In his declaration, he states

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that he believed “the court was going to hold the pre-hearing conference after [the

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parties] submitted the pretrial order,” and that “[a]t the time of the hearing[, he] was

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putting the final touches [on his] version of the pretrial order.”1 (Wang Decl. ¶ 1.) He

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further states that he does “not know why [he] did not read th[e] email” from June 27,

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2018, which informed him that the court had reset the pretrial conference. (Id.; see also

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Dkt. (6/27/18 entry).)

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As for his tardy pretrial order, Mr. Wang explains that “[w]hen the court moved up

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the deadline for the prehearing, it did not notify the parties that the deadline for the

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pretrial order would have to be moved up as well.” (Resp. at 4.) However, the court’s

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scheduling order—issued on May 15, 2017—stated that the agreed pretrial order was due

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on July 23, 2018—a date that has never changed. (See Sched. Order at 2; Dkt.) And Mr.

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Wang does not explain why he filed a separate pretrial order rather than an agreed order

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as required. (See generally Resp.; Wang Decl.; Sched. Order at 2.)

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Mr. Wang’s declaration shows that he signed it in Seattle, Washington on July 24, 2018.
(See Wang Decl. (Dkt. # 42-1) at 2.) If Mr. Wang is indeed in Seattle, that is all the more reason
the court should not excuse his failure to attend.
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III.

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ANALYSIS

Even though Mr. Wang is proceeding pro se, he is responsible for following the

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court’s orders and all applicable rules. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

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His failure to read emails informing him of court dates does not divest him of that

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responsibility. Nevertheless, entry of default is inappropriate at this time. See Fed. R.

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Civ. P. 55(a) (stating that the clerk must enter default when the party against whom relief

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is sought “has failed to plead or otherwise defend”). Mr. Wang’s response and late-filed

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pretrial order demonstrate that he intends to continue defending. See id. But the court

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once again cautions Mr. Wang that it expects him to comply with all applicable orders

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and rules. The court further reminds Mr. Wang that his trial brief and proposed findings

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of fact and conclusions of law are due on Monday, August 6, 2018. (See Sched. Order at

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2.) Because those filings are due only one week before trial—which begins on Monday,

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August 13, 2018, at 1:00 p.m.—the court will be unable to accept any late filings. (See

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id. at 1.) Should Mr. Wang fail to meet those required deadlines, the court will once

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again consider entering default or judgment against him. See Local Rules W.D. Wash.

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LCR 11(c).
Mr. Wang’s response to the possible imposition of monetary sanctions is due on

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Thursday, August 2, 2018, at 12:00 p.m. (See OSC at 2.) At that time, the court will

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consider the appropriate amount of sanctions against Mr. Wang for failing to attend the

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pretrial conference and to meet court-imposed deadlines.

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Case 2:16-cv-01738-JLR Document 43 Filed 07/25/18 Page 5 of 5

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Finally, the court orders the parties to file a single proposed pretrial order no later

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than Friday, July 27, 2018, at 12:00 p.m. If the parties cannot agree on the items in the

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order, they should state—in a single proposal—the issues on which they disagree.

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IV.

CONCLUSION

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For the foregoing reasons, the court DECLINES to enter default at this time and

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ORDERS the parties to file an agreed proposed pretrial order no later than Friday, July

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27, 2018, at 12:00 p.m. Mr. Wang’s response to the imposition of sanctions is due no

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later than Thursday, August 2, 2018, at 12:00 p.m.

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Dated this 25th day of July, 2018.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 5