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Siems v. City of Minneapolis: US District Court : CIVIL PROCEEDURE | ATTORNEY - dismissal for multiple violations of pretrial schedule order

SIEMS, an individual,
Civil File No. 06‐1415 (MJD/AJB)
a municipal corporation in
Minnesota, et al.,
Jill M. Waite, Waite Law Office, Counsel for Plaintiff.
Timothy S. Skarda and Tracey L. Nelson, Minneapolis City Attorney’s Office,
Counsel for Defendants.
This matter is scheduled for trial beginning February 4, 2008. By Court
Order filed November 13, 2007, the parties were required to submit a statement
of the case, exhibit list, witness list, list of deposition testimony, all motions in
limine, proposed voir dire, joint proposed jury instructions, and a proposed
special verdict form by 12:00 p.m. on January 18, 2008. [Docket No. 8] While
Defendants have complied with the Court’s Order, the Court did not receive any
of Plaintiff’s required documents by January 18; nor did Plaintiff otherwise
contact the Court.
On January 22, 2008, the Court filed an Order ordering:
Plaintiff shall submit a statement of the case, exhibit list, witness list, list of
deposition testimony, all motions in limine, proposed voir dire, joint
proposed jury instructions, and a proposed special verdict form, all
submitted in the manner set forth in the Court’s November 13, 2007 Order,
by noon on Friday, January 25, 2008. If Plaintiff fails to submit the required
material by noon on January 25, 2008, this case will be dismissed with
Plaintiff has not yet submitted any of the required documents or otherwise
contacted the Court as of five p.m. on January 25, 2008.
“The Federal Rules of Civil Procedure permit dismissal with prejudice
‘[f]or failure of a plaintiff to prosecute or to comply with these rules or any order
of court.’ Fed. R .Civ. P. 41(b).” Hunt v. City of Minneapolis, Minn., 203 F.3d
524, 527 (8th Cir. 2000). Dismissal with prejudice is only warranted “in cases of
willful disobedience of a court order or where a litigant exhibits a pattern of
intentional delay. This does not mean that the district court must find that the
[plaintiff] acted in bad faith, but requires only that he acted intentionally as
opposed to accidentally or involuntarily.” Id. (citations omitted).
In this case, Plaintiff has frequently disobeyed Court orders without any
explanation or excuse. On May 4, 2006, the Court filed a Notice of Pretrial
Conference requiring the parties to file a joint Rule 26(f) report by June 22, 2006.
[Docket No. 4] On June 27, 2006, Defendants filed their Rule 26(f) report,
explaining that Plaintiff did not participate in the Rule 26(f) meeting, so
Defendants had prepared the report alone. [Docket No. 5] The report recounted
Defendants’ attempts to contact Plaintiff and Plaintiff’s failure to comply with the
Court’s Order. No Rule 26(f) report on behalf of Plaintiff was ever filed.
Plaintiff has filed no motions in the case.
Plaintiff’s counsel received electronic notice of the Court’s detailed pretrial
scheduling order on November 13, 2007. The Order warned that “[t]he failure of
any party to comply with the procedures outlined herein shall result in the
imposition of an appropriate sanction.” Plaintiff wholly failed to comply with
any part of the Courtʹs Order. Plaintiff submitted not one required document
and failed to otherwise contact the Court.
Through the Judge’s Calendar Clerk, the Court has repeatedly attempted
to contact Plaintiff’s counsel by both email and telephone and has received no
On January 17, 2008, at 4:57 p.m., the Court called Plaintiff’s counsel and
her adult daughter and legal assistant answered the telephone. The Court
informed her that February 4, 2008 was the date certain trial date and also told
her to refer to the November 13, 2007 Order for the due dates for Plaintiff’s trial
On January 22, 2008, at 8:59 a.m., the Court called Plaintiff’s counsel again,
but was unable to leave a message because counsel’s answering machine was
On January 22, 2008, at 9:01 a.m., the Court emailed Plaintiff’s counsel,
I tried calling your office phone and it is too full to leave a message.
Your trial submissions for the Siems v. City of Mpls (06‐1415) case
were due on Friday, January 18, 2008 by noon. I see they have not
been filed yet. Tim Skarda has also told me you have not completed
the joint jury instructions either. Please let me know when you will
have these documents to the court. As you know we will be starting
trial on Monday, February 4, 2008.
On January, 22, 2008, the Court entered a clear Order warning Plaintiff that
the case would be dismissed with prejudice if Plaintiff did not comply with the
Court’s pretrial scheduling Order by the new deadline of January 25, 2008 at
noon. Plaintiff’s counsel received electronic notice of this Order. Again, Plaintiff
wholly failed to comply with any part of the Court’s Order or otherwise contact
the Court.
On January 25, 2008, after the noon deadline had passed, the Court called
Plaintiff’s counsel and left a message on her answering machine requesting that
she call back immediately.
This is not a case in which a party violated one portion of a pretrial
scheduling order. Rather, Plaintiff has violated every part of the Court’s Order
despite the fact that the Court granted Plaintiff an extension and clearly warned
Plaintiff of the effect of noncompliance.
The Court finds that Plaintiff’s multiple violations of the Court’s pretrial
scheduling order “on the eve of trial burdened the court and prejudiced the
defendants.” Hunt, 203 F.3d 528 (citation omitted). Defendants cannot
adequately prepare for trial when Plaintiff has submitted none of his trial
materials. A lesser sanction, such as “preventing introduction of the exhibits and
testimony that had been rendered inadmissible by [Plaintiff]’s failure to comply
with the pretrial order” would leave Plaintiff “totally unable to prove his claims.”
Id. The Court also notes that Plaintiff previously violated the Court’s Notice of
Pretrial Conference, indicating the beginning of a pattern of intentional failure to
follow Court orders.
Therefore, in accordance with the Court’s January 22, 2008 Order [Docket
1. Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.
2. The Clerk of Court shall send a copy of this Order to the following:
Office of Lawyers Professional Responsibility
1500 Landmark Towers
345 St. Peter Street
St. Paul, MN 55102‐1218
Dated: January 25, 2008 s/Michael J. Davis
Judge Michael J. Davis
United States District Court


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