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Lauro v. State

United States District Court, D. Hawaii

December 4, 2019

THOMAS LAURO, #A0153221, Plaintiff,
v.
STATE OF HAWAII DEP'T OF PUBLIC SAFETY, Defendants.

          ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT

          Derrick K. Watson United States District Judge

         Before the Court is Plaintiff Thomas Lauro's Motion for Relief From Judgement or Order, Rule 60, Fraud on the Court, Obstruction of Justice, Fraudulent Misrepresentation (“Motion”), brought pursuant to Federal Rule of Civil Procedure 60(b). Mot., ECF No. 356.[1] Plaintiff seeks relief from the December 3, 2015 dismissal of this action with prejudice, ECF No. 321, so that he may pursue his claims anew.[2] For the following reasons, Plaintiff's Motion is DENIED.

         I. BACKGROUND

         On November 7, 2012, Plaintiff, represented by counsel, filed this suit in the Circuit Court of the First Circuit, State of Hawaii (“state circuit court”). See ECF No. 1-1 (original Complaint). Plaintiff alleged that Defendants the Department of Public Safety (“DPS”), the Halawa and Waiawa Correctional Facilities (“HCF” and “WCF, ” respectively), Dr. Sisar Paderes, Dr. Steven DeWitt, and Doe Defendants 1-100 violated state and federal law when they denied him adequate medical care during his incarceration at HCF and WCF in 2011 and 2012. Am. Compl., ECF No. 114 (operative complaint). Plaintiff claimed that this alleged denial of adequate medical care resulted in injuries from which he still suffers.

         Defendants removed the case to the federal court on November 29, 2012. Notice of Removal, ECF No. 1. Extensive litigation followed for the next several years, including discovery, stipulations to continue trial and other deadlines, substitutions of counsel, motions, status conferences, and settlement negotiations.

         On or about August 20, 2015, Plaintiff was released on parole. See Green Decl., ECF No. 218-1, ¶¶ 6-8.

         On or about September 29, 2015, Plaintiff violated the terms and conditions of his parole. Id. Plaintiff's attorneys thereafter had limited contact with Plaintiff. A hearing was set for November 19, 2015, on Plaintiff's counsel, Michael J. Green, Esq.'s, Motion to Withdraw as Counsel for Plaintiff and Motion to Continue Trial Date and to Extend Rule 16 Scheduling Deadlines. ECF No. 223.

         On November 15, 2015, Plaintiff emailed the Court and all parties his email contact and telephone number. ECF No. 232-2. Mr. Green notified Plaintiff by email that he was required to be present at the November 19, 2015 hearing, although he could appear by telephone.

         On November 19, 2015, Plaintiff did not appear, and the Court unsuccessfully attempted to reach Plaintiff three times by telephone and by email.

         The Court held the sealed hearing without Plaintiff, then denied the Motion to Continue Trial Date and to Extend Rule 16 Scheduling Order Deadlines without prejudice. ECF No. 231. The Court ordered all parties and counsel to appear in person for a further settlement conference on December 1, 2015 before the presiding magistrate judge. Id.; see also Order, ECF No. 233. The Court explicitly notified Plaintiff that:

his failure to personally appear at the scheduled settlement conference . . . will be deemed a willful violation of a Court order. Having considered less drastic sanctions, as well as the stage and history of the proceedings, the Court hereby notifies Mr. Lauro that the failure to appear in person at the settlement conference on December 1, 2015 at 10:00 a.m. will result in the dismissal of his case without further notice.

         ECF No. 233. The Court instructed Mr. Green to communicate this Order to Plaintiff by “any available means, including by telephone, letter, and/or email, ” and noted that the Court would do the same. Id. The parties continued filing motions and preparing for the trial that was scheduled for December 14, 2015.

         On December 1, 2015, when Plaintiff failed to appear at the court-ordered mandatory settlement conference, the conference was canceled. See ECF No. 319. Mr. Green produced emails showing that Plaintiff was notified of the conference, but had responded that he would not appear at Court until trial in defiance of the Court's order. Defendants confirmed that Plaintiff was not in state custody.

         On December 3, 2015, the Court dismissed this action, finding that Plaintiff's continuous, willful, and deliberate conduct in failing to cooperate with his counsel or comply with court orders, particularly his failure to personally appear at the settlement conference when explicitly ordered to do so by the Court, “impeded the orderly administration of justice.” Order, ECF No. 321 at 4103. After carefully considering the factors set forth in In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006), the Court determined that dismissal, although a harsh sanction, was warranted pursuant to Fed.R.Civ.P. 41(b).

         Mr. Green timely filed a notice of appeal, ECF No. 324, and the Court of Appeals for the Ninth Circuit thereafter granted his motion to withdraw as counsel of record. See Lauro v. State, App. No. 15-17457 (9th Cir.), Dkt. 9. The appellate court notified Plaintiff that he was “now representing himself, ” and sent ...


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