United States District Court, D. Hawaii
ORDER DENYING MOTION FOR RELIEF FROM
Derrick K. Watson United States District Judge
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. 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. For the following reasons, Plaintiff's
Motion is DENIED.
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.
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
about August 20, 2015, Plaintiff was released on parole.
See Green Decl., ECF No. 218-1, ¶¶ 6-8.
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.
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.
November 19, 2015, Plaintiff did not appear, and the Court
unsuccessfully attempted to reach Plaintiff three times by
telephone and by email.
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
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
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.
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.
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).
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 ...