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Nichols v. Colvin

United States District Court, W.D. Missouri, Southern Division

July 23, 2015

KAREN NICHOLS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER OF DISMISSAL WITH PREJUDICE

ROBERT E. LARSEN, Magistrate Judge.

This case is a few days shy of 17 months old. Plaintiff filed a motion for leave to proceed in forma pauperis on March 5, 2014. That motion was granted the same day. On March 24, 2014, plaintiff filed her complaint. On October 20, 2014, the government filed the administrative record. That same day I entered a scheduling order directing plaintiff to file her brief by December 1, 2014. On December 1, 2014, plaintiff filed a motion for additional time which was granted; and the deadline was extended to January 2, 2015. On January 5, 2015 (three days after the deadline), plaintiff filed a motion for additional time. That motion was granted and the deadline was extended to February 2, 2015.

February 2, 2015, came and went. On February 23, 2015, my law clerk sent an email to plaintiff's counsel reminding him of the February 2, 2015, deadline. On March 2, 2015 (one month after plaintiff's brief had been due), I entered the first show-cause order directing plaintiff to show cause in writing by March 9, 2015, why this case should not be dismissed for failure to prosecute. Later that day, plaintiff's counsel filed a motion for additional time to file plaintiff's brief. The motion stated in part as follows: "[A]dditional time is needed to prepare and file Plaintiff's Brief because the Attorney for Plaintiff replaced paralegal staff members assigned to this matter, and client files were not updated during that time, which occurred during a holiday, as well as during inclement weather." The motion for additional time to file the brief was granted, and the deadline was extended to April 1, 2015.

April 1, 2015, came and went. On May 1, 2015, my law clerk emailed plaintiff's counsel reminding him of the missed deadline. On May 6, 2015 - after receiving no response from plaintiff's counsel - I entered the second show-cause order which outlined the history of the case and included the following:

I am keenly aware of the high volume of disability cases currently facing not only the court but plaintiffs' lawyers as well and have routinely been as lenient as possible with granting extensions of time when requested as a result. However, these cases must stay on a briefing schedule.

Plaintiff was ordered either to file her brief, file a motion requesting more time, or show cause in writing why the case should not be dismissed for failure to prosecute. The deadline for responding to this order was May 15, 2015.

On May 19, 2015 (four days after the show cause deadline), plaintiff's counsel filed a response to the show cause order. Plaintiff's response stated in part as follows:

1. On 05/06/2015, this Court issued an Order to Show Cause requesting an estension [sic] of time, or show cause why this matter should not be dismissed.
2. Concurrently, herewith, Plaintiff filed her Fourth Plaintiff's Motion for Enlargement or Extension of Time to File Plaintiff's Brief, which asks that this Court grant the Plaintiff until 05/31/2015 to file her Brief.
3. The Attorney for Plaintiff requests that this matter not be dismissed because the delays in filing and responding to this Court's deadlines are due to no fault of the Plaintiff.
4. The Attorney for Plaintiff law partner, ... suffered from a massive stroke on February 14, 2012, [1] and has been able to work as an attorney in a very limited capacity due to the resulting disability. He requires 24/7 home health care, and recently entered a residential nursing facility, and has been determined to be permanently and totally disabled by the Social Security Administration.
5. Thus, the undersigned attorney has overseen the closing of the matters in his prior office, as well as the repairing of neglected matters in his new office, all of which encompass civil suits, family law matters, social security claims, workers' compensation claims, personal injury suits, juvenile and criminal matters as well as bankruptcy proceedings.
6. Furthermore, the Attorney for Plaintiff replaced the Social Security paralegal staff members assigned to this matter, and client files were not updated during that time, which occurred during a holiday, as well as during inclement weather. Therefore, the undersigned attorney has not been afforded adequate opportunity to respond to all requests in a timely fashion because he was handling all administrative, procedural and substantive aspects of the firm's business under very difficult circumstances.

I am unclear to what plaintiff's counsel was referring when he stated that he had "not been afforded adequate opportunity to respond to all requests in a timely fashion." Plaintiff's counsel simultaneously filed a motion for additional time to file plaintiff's brief. The motion again relied on the replacement of paralegal staff members, the failure to update client files during that personnel transition, a holiday, and inclement weather. There was no explanation as to why the last two deadlines had been missed and emails from the court had been ignored resulting in the issuance of two show-cause orders. Plaintiff requested an extension ...


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