United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO DISMISS
S.C. Chang United States Magistrate Judge.
November 16, 2017, the Court held a Further Order to Show
Cause hearing. Plaintiffs Michael Warren and Cheryl Wilkinson
(collectively “Plaintiffs”) failed to appear.
Because it is clear that they are unwilling to prosecute this
case and will continue to disregard deadlines, orders, and
rules, the Court RECOMMENDS that this action be DISMISSED for
the reasons articulated below.
parties and the Court are familiar with the history of this
case, the Court includes only those facts pertinent to the
recommendation of dismissal.
13, 2017, the Court authorized the withdrawal of
Plaintiffs' former counsel. Doc. No. 86. Mr. Warren
appeared by phone at the hearing on the motion to withdraw.
Plaintiffs were notified that they are personally responsible
for complying with all court orders and time limitations
established by the applicable rules.
August 4, 2017, the Court held a hearing on Defendants'
motion to compel, which sought an order compelling Plaintiffs
to produce signed medical authorization forms. Plaintiffs did
not respond to the motion and did not appear at the hearing.
The Court granted the motion and ordered Plaintiffs to sign,
date and furnish the relevant medical authorization forms to
defense counsel by August 14, 2017. Doc. No. 88 (August 4,
2017 oral ruling); Doc. No. 89 (August 11, 2017 order
memorializing oral ruling). The Court cautioned Plaintiffs
that their failure to comply with the Order might result in
the imposition of sanctions, including dismissal of this
action. Doc. No. 89.
September 6, 2017, this Court issued an Order to Show Cause
(“OSC”) why this case should not be dismissed for
failure to prosecute and failure to comply with the
Court's August 11, 2017 Order. Doc. No. 93. The Court
cautioned Plaintiffs that failure to appear at the OSC
hearing would result in a recommendation that this action be
September 12, 2017, in response to a reminder from defense
counsel that medical authorization forms had yet to be
provided, Ms. Wilkinson texted grainy photographs of two of
the three medical authorization forms. Doc. No. 98 at 7, Ex.
I. During the course of communications between defense
counsel and Ms. Wilkinson, Ms. Wilkinson represented that
Plaintiffs had retained Missouri counsel.
September 29, 2017, Mr. Warren requested a status conference
and he submitted documentation regarding his relocation to
Missouri. Doc. Nos. 99 & 101. Despite having requested
the October 2, 2017 status conference and being notified of
the same, Plaintiffs failed to appear. Mr. Warren had to be
contacted by phone and the Court was unable to reach Ms.
Wilkinson. Contrary to Ms. Wilkinson's representation to
defense counsel, Mr. Warren informed the Court that
Plaintiffs were still attempting to retain
Court continued the OSC hearing from October 6 to October 23,
2017 to facilitate Plaintiffs' efforts to obtain counsel.
Plaintiffs never responded to the OSC and they failed to
appear at the October 23, 2017 OSC hearing.
October 23, 2017, the Court issued a Further OSC:
The Court HEREBY ORDERS Plaintiffs to provide Defendants with
original signed medical
authorizations by November 15,
2017. Digital formats will not suffice. This is
Plaintiffs' final opportunity
to comply with the August 11, 2017 Order. Failure to do so
will result in a recommendation that sanctions issue,
including but not limited to dismissal of this action.
A further OSC hearing will be held on November 16, 2017 at
9:45 a.m. Plaintiffs are ordered to appear at this hearing.
If they wish to appear telephonically, they must submit a
written request by November 9, 2017. As before, Plaintiffs
are warned that their failure to appear will result in a
recommendation that this action be dismissed. If Plaintiffs
comply with the November 15, 2017 deadline, the further OSC
hearing will be vacated.
Doc. No. 103.
November 10, 2017, Defendants filed a Notice of Bankruptcy
Petition Filed by Plaintiffs. Doc. No. 111.
November 14, 2017, the Court received an email from Mr. Warren
indicating that he and Ms. Wilkinson would sign medical
authorization forms. The Court issued the ...