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Turner v. Anderson

United States District Court, D. New Mexico

June 18, 2018

BILL TURNER, Plaintiff,
v.
ARTHUR ANDERSON, in his Individual Capacity, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. CHRISTINA ARM O SENIOR UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Defendant Arthur Anderson['s], in his Individual Capacity, Opposed Motion for Dismissal as Sanction Pursuant to FRCP Rule 16. [Doc. 79');">79] The Court has considered the submissions and the relevant law, and has otherwise been fully informed in the premises. The Court hereby DENIES the Motion but ORDERS that alternative sanctions be imposed.

         BACKGROUND

         Plaintiff filed this case on September 20, 2015. [Doc. 1] After the Court denied Defendant's Motion to Dismiss [Doc. 28], Magistrate Judge Vidmar set deadlines governing this case, including the deadline to file dispositive motions by April 27, 2017, and also setting the following deadline: “Counsel are directed to file a consolidated final Pretrial Order as follows: Plaintiff(s) to Defendant(s) on or before June 12, 2017; Defendant(s) to Court on or before June 26, 2017.” [Doc. 41, p. 3');">p. 3]

         Thereafter, Defendant filed a motion for summary judgment [Doc. 65], which was still pending as of the deadline to submit the proposed pretrial order. Defendant further timely submitted his portion of the proposed pretrial order to the Court, by emailing it to the Court's proposed text email address, on June 26, 2017. His email states:

Attached hereto please find Defendant's proposed form of Pre-Trial Order in the above-referenced matter. As the proposed Pre-Trial Order states, counsel for Defendant Anderson did not receive Plaintiff's form of Pre-Trial Order.
I have copied opposing counsel on this email.

[Doc. 79');">79-1] The email is copied to chris@ned4law.com, which is the email address Plaintiff's Counsel utilizes for service through CM/ECF. Despite having been sent this email, Plaintiff's Counsel never attempted to correct his failure to provide to Defendant and the Court Plaintiff's portion of the proposed pretrial order.

         Based on Plaintiff's failure to submit his portion of the pretrial order for over ten months, Defendant now moves this Court to dismiss this action as a sanction pursuant to Federal Rule of Civil Procedure 16. [Doc. 79');">79, p. 6] In the alternative, he requests that this Court exclude any witnesses and exhibits from admission at trial other than Plaintiff's own testimony. [Doc. 79');">79, p. 5]

         In response, Plaintiff's Counsel apologizes to the Court and to Opposing Counsel, states the mistake was inadvertent, and requests the Court not to penalize his client for his mistake. [Doc. 82, pp. 3');">p. 3-4] He states that he practices in Ruidoso where “it is very hard to find and keep adequate legal staff” and that he has been through nine secretaries. [Doc. 82, pp. 4-5] He further states that he “is making every effort he can think of to improve his professionalism and performance” including purchasing a practice guide for federal civil procedure. [Doc. 82, pp. 4-5] Further, he states that, concurrent with filing his response to the Court, Plaintiff sent to opposing counsel his portion of the proposed pretrial order. [Doc. 82, p. 3');">p. 3] Plaintiff submits that dismissal is a harsh remedy, and, given that Plaintiff's Counsel's conduct was not willful or in bad faith and did not cause undue delay in this case, he requests a lesser sanction. [Doc. 82, pp. 3');">p. 3, 5]

         ANALYSIS

         District courts have inherent as well as statutory power “to manage their business so as to achieve the orderly and expeditious disposition of cases.” LaFleur v. Teen Help, 342 F.3d 1145, 1149 (10th Cir. 2003) (internal quotation marks and citation omitted). This includes the power to “select an appropriate sanction” for failing to comply with local or federal procedural rules. Id.

         Rule 16 of the Federal Rules of Civil Procedure states:

On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney . . . fails to obey a ...

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