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Doe v. Winchester Board of Education

United States District Court, D. Connecticut

January 18, 2017

APRIL DOE, Suing by and on behalf of her minor daughter, Faith Doe, Plaintiff,
v.
WINCHESTER BOARD OF EDUCATION, Defendant.

          ORDER

          Victor A. Bolden United States District Judge.

         Order Plaintiff, April Doe, brought this action on July 28, 2010 under 20 U.S.C. § 1681 et seq. (“Title IX”), alleging that Defendant, the Winchester Board of Education, failed to protect her kindergarten-aged minor daughter from an alleged sexual assault by a fellow kindergarten student. ECF No. 1. The Court (Thompson, J.) denied Defendant's motion for summary judgment on March 21, 2013.[1] ECF No. 49. In the nearly four years since the Court denied summary judgment, this case has been scheduled for trial no less than five times, and each time the scheduled trial date has been postponed at Plaintiff's request, often on the very eve of trial.

         On October 28, 2016, this Court (Bolden, J.) issued an Order to Show Cause as to why this case should not be dismissed for failure to prosecute. ECF No. 123. The Order explained that Plaintiff's failure to comply with the Order to Show Cause could, by itself, result in the dismissal of the case for failure to prosecute. ECF No. 123. The Order to Show Cause required Plaintiff to file a memorandum in response by November 18, 2016. It also required Plaintiff to personally appear at the Order to Show Cause hearing scheduled for December 2, 2016. Plaintiff failed to file the required memorandum by November 18, 2016 and also failed to appear in person at the Order to Show Cause hearing, appearing only by telephone instead.

         Based on the protracted history of this case and the Court's numerous interactions with Plaintiff, including an on the record colloquy and an in camera discussion with her and her current counsel, the Court has no reason to believe that Plaintiff will ever be able to proceed to trial. Plaintiff has proven incapable of maintaining counsel and complying with Court orders essential to this case proceeding to trial, such as by failing to appear for Court-ordered proceedings, both in person and over the telephone. Indeed, every effort by this Court to bring this case to trial has ended in futility.

         The Court can no longer play Charlie Brown to Ms. Doe's Lucy, scheduling a trial and requiring Defendant to prepare for one, based on Ms. Doe's assurances that a trial will occur, only for Ms. Doe, at the last minute, to delay the trial yet again. See Eric Schulmiller, All Your Life, Charlie Brown. All Your Life: The Complete History of Lucy's Pulling the Football Away, Slate (Oct. 8, 2014, 9:33 AM), http://www.slate.com/articles/arts/culturebox/2014/10/the historyoflucyspullingthefootballawayfromcharliebrowninpeanuts.html.

         For the reasons summarized above and spelled out in greater detail below, the Court dismisses this case for a failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.

         I. FACTUAL BACKGROUND

         As the Court explained in its Order to Show Cause dated October 28, 2016, this case has now been trial-ready for several years. Order to Show Cause at 2, ECF No. 123. Every time a trial has been scheduled - five times in all - it has been continued at Plaintiff's request. Id. Significantly, Ms. Doe requested continuances of scheduled trial dates three times in the three months preceding the Court's Order to Show Cause. Id. In each of these three instances, Ms. Doe sought a continuance on the very eve of trial. Id. Ms. Doe also already had one set of counsel withdraw from representing her, ECF No. 64, and her current counsel, who she obtained only after delaying the scheduling of a new trial for several months, now seeks to withdraw as well, ECF No. 127. The history of this case, outlined in the Order to Show Cause, is repeated with additional detail below.

         Ms. Doe brought this action against Defendant, the Winchester Board of Education, on July 28, 2010. ECF No. 1. Defendant moved for summary judgment on March 13, 2012. ECF No. 38. On March 21, 2013, the Court (Thompson, J.) denied Defendant's motion for summary judgment. ECF No. 49. The Court then ordered, on October 1, 2013, that the parties file a joint trial memorandum by November 1, 2013. ECF No. 50. Ms. Doe moved for an extension of time until November 8, 2013 to file the joint trial memorandum, ECF No. 51, and the parties then filed the joint trial memorandum on November 6, 2013, ECF No. 52, before the Court granted the motion for extension of time on November 7, 2013. ECF No. 53.

         A. First Trial Date

         On November 5, 2014, the Court scheduled the bench trial in this case to begin on January 20, 2015. ECF No. 54. Ms. Doe moved, on December 12, 2014, for the scheduled trial to be continued until April 20, 2015. ECF No. 55. On January 26, 2015, the case was transferred to this Court (Bolden, J.) for all further proceedings. ECF No. 58. This Court granted Ms. Doe's pending request to postpone the bench trial in this case, requesting that the parties propose a new trial date by April 20, 2015. ECF No. 59.

         B. Second Trial Date

         On April 14, 2015, this Court issued an order scheduling trial in this case for September 21, 2015. ECF No. 60; see ECF No. 62 (clarifying on July 7th that the trial would be a bench trial and not a jury trial). On August 28, 2015, Plaintiff's counsel filed a motion to withdraw because the attorney-client relationship had broken down.[2] ECF No. 64. This Court therefore continued the trial and referred the case to Magistrate Judge William I. Garfinkel for a mandatory settlement conference. ECF No. 68. Judge Garfinkel held a settlement conference on October 5, 2015, and the case did not settle. ECF No. 71.

         On October 5, 2015, Ms. Doe filed an appearance, pro se, ECF No. 73, and a response to Plaintiff's counsel's motion to withdraw, ECF No. 72. On October 27, 2015, this Court held a motion hearing and status conference to discuss Plaintiff's counsel's motion to withdraw. ECF No. 76. The Court then issued an order scheduling a telephonic motion hearing and requiring Plaintiff's counsel to inform Ms. Doe of all details regarding the hearing to ensure her appearance on the call. ECF No. 77. On October 30, 2015, the Court held the telephonic motion hearing, granted Plaintiff's counsel's motion to withdraw, granted Ms. Doe sixty (60) days to obtain new counsel, and scheduled a telephonic status conference with Plaintiff in thirty (30) days, for November 30, 2015, if new Plaintiff's counsel did not file an appearance by that date. ECF No. 78. Plaintiff failed to appear for the telephonic status conference on November 30, 2015. ECF No. 79.

         Plaintiff appeared for the rescheduled telephonic status conference on December 14, 2015, during which the Court set a follow-up telephonic status conference on January 5, 2016 and ordered that Plaintiff retain counsel by that time “or be prepared to discuss how she would propose to proceed with this litigation in the alternative.” ECF No. 80. The Court rescheduled the January 5, 2016 telephonic status conference for January 21, 2016. ECF No. 81.

         Plaintiff appeared for the January 21, 2016 telephonic status conference, during which the Court scheduled an additional follow-up telephonic status conference for February 22, 2016. ECF No. 82; ECF No. 83. New Plaintiff's counsel then filed an appearance on February 21, 2016. ECF No. 84.

         C. Third Trial Date

         Following the appearance of new Plaintiff's counsel, this Court scheduled its first 2016 date for the bench trial in this matter, August 22, 2016, with a pre-trial conference scheduled on August 19, 2016 and a joint pre-trial memorandum due July 22, 2016. ECF No. 89. The parties filed the pre-trial memorandum on July 27, 2016. ECF No. 92. At the August 19, 2016 pre-trial conference, three days before the third trial date, Plaintiff's counsel indicated that Plaintiff was willing to proceed with an additional settlement conference before Magistrate Judge William I. Garfinkel. In light of this, the Court postponed the bench trial until September 12, 2016. ECF No. 101.

         D. Fourth Trial Date

         In advance of the September 12, 2016 trial date, the Court also ordered that the parties submit exhibits for trial by September 8, 2016. ECF No. 101. Following the settlement conference, which did not result in settlement, Plaintiff failed to submit her exhibits for trial by September 8, 2016, and, as of this date, still has failed to submit her exhibits.

         In advance of the September 12, 2016 trial date, on or around September 8, 2016, Plaintiff's counsel indicated that she had a scheduling conflict on September 14, 2016, and the Court ordered that the parties should still be prepared to commence the bench trial on September 12, 2016. ECF No. 104. Plaintiff then filed a motion to continue the trial on September 9, 2016. ECF No. 105.

         E. Fifth Trial Date

         Following an additional telephonic status conference with the parties on September 9, 2016, ECF No. 107, this Court rescheduled the bench trial in this case for October 31, 2016, the third trial date in three months and the fifth trial date in this case overall, with a pretrial conference scheduled to occur on October 27, 2016. ECF No. 108.

         On October 2, 2016, the Plaintiff filed a motion to amend the witness list by adding a new witness for trial. ECF No. 109. In light of the impending trial date, the Court ordered that Defendant file its objection to this motion on October 7, 2016, ECF No. 110, which Defendant timely did. ECF No. 111. The Court then ordered that Plaintiff file a reply to Defendant's objection by October 14, 2016. ECF No. 112. Plaintiff did not file her reply until October 15, 2016. ECF No. 115. On October 18, 2016, the Court held a telephonic status conference to discuss Plaintiff's motion to add a new witness for trial, denying the motion without prejudice to renewal if the Plaintiff provided Defendant with additional documents regarding the proposed new witness's testimony by October 21, 2016. ECF No. 116. On October 24, 2016, Plaintiff filed a renewed motion to amend the witness list and add the new witness. ECF No. 118. Defendant filed its opposition to the motion on October 26, 2016. ECF No. 119.

         On October 27, 2016, the day of the pretrial conference, Plaintiff filed an additional motion to continue the trial, just forty-five minutes before the scheduled time for the pre-trial conference. ECF No. 120. Plaintiff's counsel failed to appear for the pre-trial conference, ECF No. 122, and also moved for leave to withdraw from representing Plaintiff, citing Plaintiff's “ongoing and insufficient cooperation regarding preparing for the trial of this matter.” ECF No. 121.

         F. Order to Show Cause and Hearing

         On October 28, 2016, this Court issued an Order to Show Cause as to why this case should not be dismissed for failure to prosecute under Rule 41 of the Federal Rules of Civil Procedure. ECF No. 123. The Court scheduled the Order to Show Cause hearing for December 2, 2016 at 2:00 P.M. Order to Show Cause at 1. Plaintiff's counsel was ordered to provide a copy of the Order to Show Cause to Plaintiff on or before November 4, 2016. Id. at 6.

         The Court ordered that the Plaintiff file, by November 18, 2016, a memorandum of law (1) explaining the grounds for her most recent motion to continue, (2) attaching documentation that clearly establishes why the requested continuance was necessary, and (3) explaining whether there is reason for the Court to believe that the matter could be tried within a reasonable amount of time. Order to Show Cause at 2. The Court indicated that a failure by Plaintiff to submit such a memorandum by November 18, 2016 could result in the dismissal of the case for failure to prosecute. Id.

         The Court also ordered that Plaintiff appear in person at the December 2, 2016 Order to Show Cause hearing. Order to Show Cause at 2. The Court indicated that a failure by Plaintiff to appear in person at the December 2, 2016 hearing could ...


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