United States District Court, E.D. Missouri, Eastern Division
EDWARD B. GOGAN, Plaintiff,
JEFFREY SILER, et al., Defendants.
MEMORANDUM AND ORDER OF DISMISSAL
L. WHITE, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants' Motion to
Dismiss for Failure to Comply with this Court's Order
Relating to Trial (ECF No. 99) and Renewed Motion to Dismiss
for Failure to Comply with this Court's Order Relating to
Trial and Failure to Appear at Pretrial Conference. (ECF No.
114) This case is set for trial on February 5, 2018. The
Court scheduled the pretrial conference for January 31, 2018
at 2:00 p.m. Counsel for the Defendants, Michael Hughes and
Lacey Smith, appeared at the hearing; counsel for Plaintiff,
Martin Green, did not appear. At the hearing, defense counsel
Mr. Hughes stated on the record that he received a phone call
from Mr. Green's legal assistant around 1:00 p.m. on
January 31, 2018, an hour before the scheduled hearing,
informing counsel that Mr. Green was going to the
hospital. Mr. Hughes renewed Defendants' motion
to dismiss on the basis that Defendants and defense counsel
had expended substantial time and effort to prepare and
appear for the upcoming trial.
Court notes that this case has been pending for over 3 years,
and the underlying events in the First Amended Complaint
occurred in March 2012. Extensive discovery was conducted,
and Plaintiffs claims survived Defendants' motion for
summary judgment. The case was reassigned to this Court in
July 2017 upon the retirement of United States District Judge
Carol E. Jackson. On August 9, 2017, the Court held a status
conference during which time the parties agreed to ADR. (ECF
No. 74) The parties requested additional time for ADR but on
October 25, 2017, the neutral reported that the parties did
not achieve a settlement. (ECF No. 81) On November 7, 2017,
the Court issued an Order Relating to Trial, scheduling the
case for a jury trial on February 5, 2018 and setting forth
the deadlines for pretrial compliance. (ECF No. 82) The Court
explicitly stated that "[f]ailure to comply with any
part of this order may result in the imposition of
sanctions." (Id. at p. 2) The Court also set
the case for a pretrial conference on January 31, 2018 at
2:00 p.m. (ECF No. 83)
months later, Mr. Green filed a motion to continue the trial
setting for 90 days, which the Court denied. (ECF Nos. 84,
85) Mr. Green then filed a motion for extension of time to
submit pretrial materials, which the Court granted. (ECF Nos.
86, 87) On the extended day that the pretrial materials were
due, Mr. Green's assistant informed the Court that the
building was experiencing a power outage. On the Court's
own motion the Court gave Plaintiff yet another extension of
time to submit pretrial materials, to and including January
22, 2018 at noon. (ECF No. 88) However, counsel for Plaintiff
did not timely submit his pretrial materials, and on January
23, 2018, counsel for Defendants filed a Motion to Dismiss
for Failure to Comply with this Court's Order Relating to
Trial, arguing that Plaintiffs counsel had not communicated
with defense counsel regarding the delay in filing the
pretrial materials and that Defendants were prejudiced by
Plaintiffs failure to comply with the trial order and with
various extensions of time. (ECF No. 99) Mr. Green then filed
a motion for extension of time to submit pretrial materials,
citing the power outage and the flu as the reasons for his
delay in filing. (ECF No. 100) Mr. Green further stated that
he was again able to work on January 23, 2018, the date of
the motion. (Id.) The Court held the motion to
dismiss in abeyance pending the timely submission of all
pretrial materials and granted Plaintiffs motion for
additional time. (ECF No. 101) The Court notes that Mr. Green
did file Plaintiffs pretrial materials; however, Mr.
Green's absence from the pretrial conference rendered it
impossible for Defendant's counsel Mr. Hughes and the
Court to address Defendant's motions in limine and
objections to Plaintiffs pretrial materials.
the hearing on January 31, 2018, Mr. Hughes renewed
Defendants' motion to dismiss and added that Mr.
Green's failure to appear at the pretrial conference
would affect the trial setting and greatly prejudice
Defendants, who have made arrangements to accommodate the
trial setting, including travel arrangements and schedule
changes with employers. (ECF No. 115, p.4) In addition,
defense witnesses made schedule changes to be available for
trial on February 5, 2018. Upon review of the motions, the
Court will grant Defendants' Motions to Dismiss. The
procedural history of this case shows that both Judge Jackson
and this Court have been generous in continuing trial
settings and granting extensions of time. With respect to
pretrial in this case, the Court gave Plaintiffs counsel
extensions of time to submit pretrial materials without a
proper motion and after the time had expired. However,
Plaintiff has failed to fully comply with the Court's
orders, and the Court thus finds that dismissal is proper.
Fed.R.Civ.P. 41(b). Plaintiff has the responsibility of
prosecuting his case, and the Court further finds that the
numerous delays and excuses have been prejudicial to the
Defendants and have impeded the ability of the Court to
expeditiously resolve this case. Snelling v. HSBC Card
Servs., Inc., No. 4:14CV431 CDP, 2015 WL 3621091, at *3
(E.D. Mo. June 9, 2015).
IT IS HEREBY ORDERED that Defendants'
Motion to Dismiss for Failure to Comply with this Court's
Order Relating to Trial and Renewed Motion to Dismiss for
Failure to Comply with this Court's Order Relating to
Trial and Failure to Appear at Pretrial Conference (ECF Nos.
99, 114) are GRANTED.
IS FURTHER ORDERED that this cause of action is
DISMISSED without prejudice. Dated this 31st
day of January, 2018.
 The Court notes that chambers received
a similar phone call sometime after ...