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O'Toole v. The Home Depot Usa, Inc.

United States District Court, W.D. Pennsylvania

May 23, 2014

THOMAS O'TOOLE and REBECCA O'TOOLE, Plaintiffs,
v.
THE HOME DEPOT U.S.A., INC., Defendant.

ORDER

CATHY BISSOON, District Judge.

Having considered the parties' submissions regarding Plaintiffs' failure to appear for the Settlement Conference scheduled for April 28, 2014, the Court concludes that, although Plaintiffs' case will not, at this time, be dismissed, Plaintiffs will be ordered to pay the attorney's fees and costs associated with Defendant's appearance at the Conference.

The Court is unsatisfied with Plaintiffs' explanations for missing the Settlement Conference. Plaintiffs admit that Mr. O'Toole contacted Defendant's counsel to discuss the potential settlement of this case. See Doc. 64 at ¶ 1. Although Plaintiffs deny having consented to the filing of the Joint Motion (Doc. 56) for a settlement conference, they do not (and cannot) deny having received the Order dated March 14, 2014 (Doc. 57), which specifically directed that "Thomas O'Toole[ and] Rebecca O'Toole... must appear in person at the Conference." Id. (emphasis in original).[1] Plaintiffs also were repeatedly advised, by Order and through the undersigned's Practices and Procedures, that their failure to appear at Court-ordered conferences may result in a summary grant of the appearing party's costs and fees. See Order dated Jul. 24, 2013 (Doc. 42) at 2 (contemplating "summar[y] assess[ment]" of fees and costs against non-appearing party); compare Court's Practices & Procedures at ¶ III.A.5 ("Judge Bissoon requires counsel and their clients, or other persons with ultimate settlement authority... to be present at settlement conferences, " and "[s]hould the Court determine that [a] client/representative [with] ultimate settlement authority" does not appear, "sanctions may be imposed") (emphasis in original) with Order dated Apr. 4, 2013 (Doc. 19) at ¶ 6 ("[n]otwithstanding Plaintiffs' pro se status, " they must "comply with all Court Orders and deadlines, " as well as "the Practices and Procedures of the undersigned..., and they will be held responsible for complying with such practices and procedures"); see also Order dated Apr. 4, 2013 (Doc. 20) (warning Ms. O'Toole, after prior unexcused failure to participate in Telephone Conference, that "she must attend and/or participate in all court conferences and proceedings as directed, or face contempt sanctions") (emphasis added).

As to Plaintiffs' other excuses, they claim to have "totally forgot[ten] that they had a hearing" on April 28th "due to the severity of [Mr. O'Toole's]" recent medical condition. See Docs. 60 & 61. In their next breath, though, Plaintiffs state that "[they] were under the impression that [the Conference] was [to be held on] the 30th of April." Doc. 60. It is strange for Plaintiffs to suggest, on the one hand, that Mr. O'Toole's medical problems were so severe that they had to "drop everything" in their lives, including this case, while on the other hand, they claim to have been unaware that they were violating the Court Order because they thought the Conference was scheduled for April 30th, only two days later. Plaintiffs' excuses bring to mind the adage, "the dog ate my homework, " and it suffices to say that their assertions are unconvincing.[2]

If Plaintiffs were, as they claim to be, highly motivated to prosecute their claims in this case, they easily could have telephoned Defendant's counsel and the Court once it became clear that Mr. O'Toole's medical problems would present difficulties and ask that the Conference be rescheduled. Not showing up, not calling and being unavailable at their telephone number of record is plainly inconsistent with the standards of counseled litigation in this District. See discussion supra (recognizing that, Plaintiffs' pro se status notwithstanding, they are expected to adhere to same standards applicable in every other case, including, particularly, compliance with Court orders and deadlines).

Nevertheless, the Court concludes that Plaintiffs' responses reflect sufficient remorse that a dismissal of their claims with prejudice would, at this juncture, be inappropriate. In light of the explicit instructions and warnings given to Plaintiffs regarding the consequences that may result from an unexcused failure to appear, however, the Court has no hesitation in awarding Defendant its associated costs and attorney's fees. The Court has reviewed Defendant's Motion (Doc. 62, as amended by Doc. 63), and the costs and fees reflected therein are entirely reasonable. The Motion, therefore, is GRANTED, and Plaintiffs are jointly and severally liable to Defendant in the amount of $ 892.50. Payment shall be made to Defendant, by delivery to defense counsel's office, within thirty (30) days of the date of this Order. The parties are not precluded from agreeing on alternate payment terms, including, for example, a monthly payment schedule, and, as appropriate, the Court will oversee discussions of such an agreement should final efforts at settlement prove unsuccessful.

Next in this case, and in the absence of a settlement, the Court will resolve Defendant's pending Motion for Summary Judgment (Doc. 46). As Plaintiffs undoubtedly are aware, a grant of the Motion will result in final judgment being entered in favor of Defendant and against Plaintiffs, thereby ending the case. Plaintiffs' obligation to pay the award of costs and fees, however, would remain unaffected.

Should Defendant's Motion be denied, the Court will enter an order scheduling pretrial deadlines and trial. Among other things, the order will establish deadlines and instructions regarding: Plaintiffs' and Defendant's required filing of a pretrial narrative statement, as consistent with Local Rule 16.1.C; the marking of trial exhibits and compliance with Local Rule 16.1.C.5.a; the filing of motions in limine and under Daubert, and responses thereto; and the parties' submission of proposed jury instructions, proposed verdict forms and proposed voir dire. With respect to these obligations, the parties are directed to the Federal Rules of Civil Procedure, the Local Rules of this Court, and the instructions in the undersigned's Practices and Procedures.

Before ruling on summary judgment, however, the Court will afford the parties one last opportunity to engage in court-facilitated settlement negotiations. Plaintiffs thrice have requested the scheduling of an additional conference, see Docs. 60, 61 and 64, although they request that the conference be held by telephone. See id. The Court rejects their request for a telephone conference, however, because it is inconsistent with both the undersigned's rules and her experiences regarding effective settlement negotiations.[3]

Consistent with the above, a Settlement Conference is scheduled for June 6, 2014 at 10:00 a.m., and will be held in the undersigned's Chambers. Thomas O'Toole and Rebecca O'Toole and counsel for Defendant shall appear in person, and the Court will not indulge requests for rescheduling. Should Plaintiffs not appear, or not communicate within a reasonable time before the Conference that either or both of them do not intend to appear, additional and more severe sanctions will be entered against Plaintiffs, up to and including the dismissal of their case with prejudice.

If, for whatever reason, the Conference does not proceed as scheduled, no further Court-facilitated settlement negotiations will be entertained and the Court will proceed to resolve Defendant's Motion for Summary Judgment.

IT IS SO ORDERED.


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