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Wilkinson v. Aoao Villa on Eaton Square

United States District Court, D. Hawaii

November 17, 2017

CHERYL WILKINSON; MICHAEL WARREN, Plaintiffs,
v.
AOAO VILLA ON EATON SQUARE, ET AL., Defendants.

          FINDINGS AND RECOMMENDATION TO DISMISS ACTION

          Kevin S.C. Chang United States Magistrate Judge.

         On 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.

         BACKGROUND

         As the parties and the Court are familiar with the history of this case, the Court includes only those facts pertinent to the recommendation of dismissal.

         On June 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.

         On 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.

         On 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 dismissed. Id.

         On 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.

         On 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 counsel.[1]

         The 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.

         On 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.

         On November 10, 2017, Defendants filed a Notice of Bankruptcy Petition Filed by Plaintiffs.[2] Doc. No. 111.

         On November 14, 2017, the Court received an email[3] from Mr. Warren indicating that he and Ms. Wilkinson would sign medical authorization forms. The Court issued the ...


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