The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge
This matter is before the Court on Defendant U.S. Security Associates, Inc.'s Motion to Dismiss and Memorandum in Support for Failure to Comply with Court's Order; for Failure to Prosecute, and for Sanctions filed December 18, 2008. On January 29, 2009 and February 5, 2009, the Court held hearings to show cause why sanctions should not be imposed against Plaintiff for his failure to comply with this Court's discovery order. Having reviewed and considered the contentions of the parties as well as the transcripts of the show cause hearings, the Court is prepared to rule on this matter.
Plaintiff commenced this action by filing a Complaint in the Court of Common Pleas of Lehigh County, Pennsylvania, on April 15, 2008. In so doing, Plaintiff alleged wrongful termination of employment in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. Plaintiff averred that he was terminated from his position as a Loss Prevention Officer on January 25, 2007, because of his age, and because he held the highest seniority of any other Loss Prevention Officers. On April 25, 2008, Defendant removed the matter to this Court pursuant to 28 U.S.C. § 1331.
On September 8, 2008, following a telephone status conference with all parties, the Court issued a Rule 16 Scheduling Order setting forth the case management deadlines. The Rule 16 Scheduling Order, as amended on September 11, 2008, provided that all discovery in the case was to be completed by December 11, 2008, and that all dispositive motions be filed and served by January 12, 2009.
On September 18, 2008, Defendant propounded its First Set of Interrogatories and First Requests for Production on Plaintiff. After the deadline for discovery responses had passed, counsel for Defendant contacted Plaintiff's counsel regarding the outstanding discovery, but received no response. More specifically, on October 31, 2008, Defendant's counsel sent Plaintiff's counsel a letter via U.S. mail requesting responses to its multiple discovery requests. After Plaintiff failed to respond to this letter, Defendant's counsel attempted to contact Plaintiff's counsel via telephone on November 14, 2008. Plaintiff's counsel did not return the call and failed to provide any discovery responses.
Pursuant to the Court's procedures, Defendant sought the intervention of the Court by forwarding an informal letter motion to compel for resolution on November 24, 2008. In so doing, Defendant's counsel advised the Court that it was seeking complete responses to the written discovery it had previously propounded on Plaintiff. In addition, counsel for Defendant advised that Plaintiff had not yet submitted any Rule 26(A)(1) initial disclosures to Defendant.
Based on defense counsel's informal letter motion, a telephonic discovery conference was ordered on November 25, 2008 to be held on December 4, 2008 between the Court and both counsel. During the December 4, 2008 conference, Plaintiff's counsel admitted that no discovery responses had been served on Defendant. In addition, counsel for Plaintiff advised that, despite his attempts to contact Plaintiff, he had not heard from the Plaintiff since September 2008.
On December 4, 2008, the Court issued an Order directing Plaintiff to provide his initial disclosures and full and complete responses to Defendant's First Set of Interrogatories and First Requests for Production of Documents on or before Monday, December 15, 2008. This Order, which referenced Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi) and 37(d)(3), also advised Plaintiff that the failure to comply could result in the imposition of sanctions including, but not limited to, payment of attorney's fees and dismissal of this civil action. On that same date, both at the request of Defendant and because of Plaintiff's failure to provide discovery in a timely fashion, the Court issued an additional Order extending all case management deadlines by sixty days.
On December 18, 2008, Defendant U.S. Security Associates, Inc.'s Motion to Dismiss and Memorandum in Support for Failure to Comply with Court's Order; for Failure to Prosecute, and for Sanctions was filed.*fn1 Because of Plaintiff's continued noncompliance with discovery and the Court's December 4, 2008 Order, Defendant now moves for entry of sanctions in the form of dismissal of the Complaint in its entirety. Defendant also seeks payment of expenses caused by Plaintiff's failure to respond to discovery and comply with the Court's Order.
On December 24, 2008, the Court entered an Order scheduling a hearing for January 29, 2009 to show cause why sanctions should not be imposed against Plaintiff for failure to comply with the December 4, 2008 Order. The December 24, 2008 Order directed counsel for Defendant to provide a list of all expenses and fees incurred as a result of Plaintiff's failure.
The Order further required counsel for Plaintiff to forward a copy of the Order to his client and directed Plaintiff and his counsel to personally appear at the January 29, 2009 hearing. On December 30, 2008, counsel for Defendant filed his Itemization of Costs seeking monetary sanctions in the amount of $2,475.00.
Plaintiff's counsel and Plaintiff failed to appear at the hearing on January 29, 2009. After attempting to contact Plaintiff's counsel via telephone, the Court learned from his associate attorney that he was involved in an arbitration proceeding in Philadelphia. After acknowledging on the record that appropriate notice of the hearing had been given to all parties via electronic filing, and because no one from Plaintiff's counsel's office had informed the Court that they were unable to attend the hearing as scheduled, the Court proceeded with the hearing.
At the hearing, the Court placed on the record the procedural history of this matter. Thereafter, defense counsel argued that, based on this history, Plaintiff had shown no intent to proceed with this case and requested that the matter be dismissed in its entirety. Defense counsel also requested permission to amend his Itemization of Costs to include time spent in relation to attendance at the hearing and preparation for the hearing. The amount in which counsel for Defendant seeks monetary sanctions, therefore, increased to $3,119.00.
After the hearing had concluded, and the record of the hearing had been closed, the Court received a phone call from Plaintiff's counsel who requested an opportunity to address the Court. The Court subsequently held a telephone conference on the record with both counsel. During the conference, counsel for Plaintiff apologized for missing the hearing and advised that his staff did not receive notice of the hearing that had taken place earlier that day. Counsel for Plaintiff also admitted to the Court that he had difficulty communicating with the Plaintiff and had not heard from him since September 2008. With respect to notice, the Court reminded counsel for Plaintiff that notice of the hearing had been given via electronic notification to two e-mail addresses registered to counsel.*fn2 Moreover, the Court noted that Plaintiff had also failed to respond to Defendant's motion to dismiss filed December 18, 2008,*fn3 and Defendant's itemization of costs filed December 30, 2008. For these reasons, the Court declined to allow additional testimony, argument or briefing.
However, because it became clear to the Court that the Plaintiff himself had never actually received notice of the January 29, 2009 hearing, the Court entered an Order on February 2, 2009 scheduling a second hearing for February 5, 2009 so as to allow Plaintiff an additional opportunity to respond to the Court's rule to show cause order. The Court notes that no discovery was exchanged and no attempt to prosecute this matter was made by Plaintiff in response to this Order or any other court order for that matter. To the contrary, counsel for Plaintiff responded to this Order by serving a letter on the Court dated February 4, 2009, which stated, in pertinent part, as follows:
I have received permission from my client to withdraw all federal claims, with prejudice.
At that point, your Honor will no longer have jurisdiction over this case and we would then seek a remand of this case to the Lehigh County Court of Common Pleas. I realize that Defendant still has the right to file a Motion for Sanctions notwithstanding the withdrawal of the federal claims. By the same token, the Plaintiff also ...