United States District Court, D. Connecticut
APRIL DOE, Suing by and on behalf of her minor daughter, Faith Doe, Plaintiff,
WINCHESTER BOARD OF EDUCATION, Defendant.
A. Bolden United States District Judge.
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. 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.
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
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.
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),
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
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.
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.
First Trial Date
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.
Second Trial Date
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. 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.
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.
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.
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.
Third Trial Date
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.
Fourth Trial Date
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
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.
Fifth Trial Date
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.
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.
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.
Order to Show Cause and Hearing
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.
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.
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