Wooden, Debra v. Michaels Energy, Inc.

Filing 30

ORDER regarding 9/1/2016 Order to Show Cause Hearing. Signed by District Judge William M. Conley on 9/2/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DEBRA J. WOODEN,

ORDER
Plaintiff,

15-cv-567-wmc

v.
MICHAELS ENERGY, INC.,
Defendant.

A default hearing for plaintiff to show cause why her case should not be dismissed was
held yesterday in the above-captioned matter. Plaintiff appeared by telephone and by her
attorney Janet Heins, who was present in person; defendant appeared by attorney Thomas
Cabush. At this time, the court will not dismiss the case, but plaintiff and her counsel are
down to their last, unexplained delay.
The hearing itself was prompted by plaintiff’s persistent failure to respond to
defendant’s discovery requests timely, as well as repeated failures to comply with the court’s
orders in this case. Specifically, defendant filed a motion to compel discovery on July 1,
2016, seeking responses to its interrogatories and requests for production from February 15,
2016.

Plaintiff failed to provide any responses, despite defendant following up on its

discovery requests with plaintiff’s counsel beginning on April 5, 2016, and despite plaintiff’s
counsel’s multiple promises to respond. Plaintiff also failed to provide authorizations for
defendant to obtain records from her health care providers, preventing defendant from being
able to file a motion for summary judgment by the original deadline established by the court.
Making matters worse, plaintiff’s counsel’s response to the motion to compel itself
was not only four days late, it was also inadequate. See Magistrate Judge Crocker’s Order

(dkt. #20) at 1.

This was compounded further by plaintiff failing to appear for her

independent psychological examination, scheduled July 14, 2016, which caused defendant to
incur an out-of-pocket, no-show fee from its expert in the amount of $2,145.
On July 18, Magistrate Judge Crocker ordered plaintiff’s counsel to respond fully to
defendant’s discovery requests, file a certification with the court that she had complied with
those obligations, and present plaintiff for an independent psychological examination. (Id. at
2.) The court also held plaintiff and her counsel, Ms. Heins, jointly and severally liable for
the no show fee and ordered that it be paid on or before August 17, 2016. (Id.) Finally,
Judge Crocker also warned plaintiff “that her case now hangs by a thread as a result of her
persistent failure to meet her discovery obligations.” (Id. at 1.)
Despite this unambiguous admonishment, defendant recently notified the court that
neither plaintiff nor plaintiff’s counsel had paid the no-show fee within the established
deadline. This prompted the court to issue its August 25th order scheduling the show cause
hearing. In advance of the hearing, defendant’s counsel notified the court that it received a
check from plaintiff’s counsel in the full amount of the no show fee on August 29, 2016,
twelve days past its original due date.
As the court noted in greater detail during the hearing, this is hardly Attorney Heins’
first failure to appreciate the importance of meeting this court’s deadlines. See Marshall v.
Precision Pipeline LLC, No. 13-cv-443-wmc, 2015 WL 224689, at *23 (W.D. Wis. Jan. 15,
2015) (sanctioning Ms. Heins $250 after crediting her representation that personal issues
prevented timely discovery responses, albeit only in part, and being “persuaded that the
financial sanction, coupled with this public admonishment [would be] sufficient incentive for
Heins to do better as an officer of the court in the future”); Bluestein v. Cent. Wis.

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Anesthesiology, S.C., 296 F.R.D. 597, 601 (W.D. Wis. 2013) (imposing less severe sanctions
than dismissal despite a finding that Ms. Heins and her client “ignored completely at least
two deadlines for producing discovery, defied one court order and . . . delayed and [provided
an] incomplete response to the magistrate judge’s [previous] order”).
Inexplicably, given this history, Ms. Heins appeared before the court yesterday under
the misimpression that the only reason the court was considering dismissal of her case was
that she had failed to pay her latest sanction timely, which she also explained for the first time
at the hearing, had not been paid timely because neither her client nor she had the money to
do so. There is much wrong with Ms. Heins’ posturing. Leaving aside that it was tone deaf,
given the possibility of this court actually entering a dismissal of her client’s case at the
hearing, it suggests counsel was either unwilling or unable to acknowledge the distinction
between a single failure to act timely and repeated failures in this and previous cases before
the court. Regardless, the court is not a mind reader, and Ms. Heins’ failure to advise the
court of an inability to meet a deadline is wholly inexcusable under the circumstances.
Indeed, it seems that Ms. Heins’ attitude is that it is better to ignore deadlines and hope to
be forgiven, over and over again, rather than to be straightforward with both the court and
opposing counsel. That practice must stop.
Even though this latest example of plaintiff and her counsel’s unexcused failure to
comply with this court’s orders could (and probably should) be the proverbial straw that
broke the camel’s back (or to use Judge Crocker’s metaphor, snapped the last thread), the
court will not dismiss plaintiff’s case at this time.
yesterday, the court ordered as follows:

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Instead, as set forth on the record

1. Within seven days of defendant providing the name of the specific treating
physician who may have received a “medical log” from plaintiff, her counsel shall arrange a
call between that treating physician, herself and defendant’s counsel to determine whether
those logs exist and, if so, arrange their prompt production to opposing counsel.
2. On or before Thursday, September 8, 2016, plaintiff’s counsel shall provide to
defense counsel a signed medical disclosure authorization for submission to plaintiff’s
treating physician, Dr. Judith Verage.
3. On or before Thursday, September 8, 2016, plaintiff’s counsel shall provide
plaintiff’s social security earnings information to defendant’s counsel.
Failure to comply timely with this order will likely result in dismissal of plaintiff’s case
with prejudice. In the unlikely event plaintiff or plaintiff’s counsel should become unable to
comply timely with any of the three tasks set forth above, plaintiff’s counsel must ask the
court for relief in advance of the established deadlines.
Entered this 2nd day of September, 2016.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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