United States District Court, D. Hawaii
ORDER DISMISSING CASE
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
This case before the Court has been pending for over three years, with trial set to begin on December 14, 2015. Despite the imminence of trial, Plaintiff Thomas Lauro has largely absented himself from pretrial proceedings and trial preparation, and ignored specific Court orders and instructions directed to him personally, impeding the orderly administration of justice. Having considered the five factors that bear on the propriety of dismissal, and acknowledging the severity of the sanction, the Court nonetheless concludes that dismissal is the appropriate sanction under the circumstances. Accordingly, the Court DISMISSES this case for the reasons set forth below.
I. Relevant Pretrial Proceedings
At a hearing on August 17, 2015, the Court briefly continued the trial date from November 2, 2015 to December 14, 2015 upon the request, and with the concurrence, of all counsel. Dkt. No. 170. The Court observed at that time that the case had been pending for nearly three years, and that no further continuance of the trial would be entertained.
On November 10, 2015, the Magistrate Judge held a final pretrial conference. Dkt. No. 214. Mr. Lauro did not participate in the final pretrial conference. According to defense counsel’s pretrial statement, Mr. Lauro had been incarcerated at Halawa Correctional Facility, but “[t]he most recent parole was granted on August 20, 2015. On September 29, 2015, [Mr. Lauro] left his parole residence without authority and remains absent in violation of his parole.” Dkt. No. 213 at 8.
II. Plaintiff’s Repeated Willful Violations of Court Orders
On November 13, 2015, Plaintiff’s counsel filed a renewed Motion to Withdraw as Counsel (“Motion to Withdraw” [Dkt. No. 218]) and a Motion to Continue Trial Date and Extend Rule 16 Scheduling Order Deadlines (“Motion to Continue” [Dkt. No. 220]). After agreeing to expedite consideration of these Motions, the Court directed Plaintiff’s counsel to ensure Mr. Lauro’s participation in the November 19, 2015 hearing on the Motions [Dkt. No. 222], and it is evident from the record [Dkt. No. 232] that counsel complied with this order by both providing copies of the aforementioned Motions to Mr. Lauro and requesting that he arrange with counsel to appear either in person or telephonically at the hearing. It is equally evident that Mr. Lauro received counsel’s communications and was aware that the Court had directed him to participate in the November 19 hearing. See Dkt. No. 232.
A. Plaintiff’s Failure to Appear at the November 19, 2015 Hearing
On November 19, 2015, the Court held a hearing on Plaintiff’s counsel’s Motions. Dkt. No. 231. Despite Mr. Lauro’s awareness of the Court’s order directing him to participate in the hearing, Mr. Lauro did not appear at the hearing, nor did he contact counsel or the Court to arrange a telephonic appearance. In fact, the Court itself attempted to reach Mr. Lauro by telephone three times and by email prior to the hearing, but was unsuccessful. Dkt. No. 231. Mr. Lauro did not answer the telephone, did not return the Court’s calls, and did not respond to the Court’s email.
Based on the record before the Court, including the information conveyed to the Court by Plaintiff’s counsel during the sealed portion of the November 19 hearing, the Court denied the Motion to Withdraw without prejudice. Dkt. No. 231. The Court also denied without prejudice the Motion to Continue Trial Date and to Extend Rule 16 Scheduling Order Deadlines, with the exception of briefly extending the deadline for one particular motion in limine. Dkt. No. 231.
In light of the events that had transpired, including a material change in circumstances that Plaintiff’s counsel raised during the sealed portion of the hearing that would have likely affected the parties’ settlement posture, the Court ordered all parties and their counsel to participate in a final mandatory settlement conference before Magistrate Judge Kurren on December 1, 2015 at 10:00 a.m. Dkt. Nos. 231, 233. The written order stated:
All parties, including Mr. Lauro, are directed to personally appear at the settlement conference on December 1, 2015 at 10:00 a.m. ...