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Monday, November 21, 2005

Ind. Decisions - "This case presents an unfortunate and wholly avoidable primer on how not to litigate a case"

A reader has pointed me to this ruling by federal Magistrate Tim A. Baker, dated 11/9/05, but just posted on the SD Ind. website. The case is Sullen v Midwest ISO. Some quotes from the 10-page ruling:

This case presents an unfortunate and wholly avoidable primer on how not to litigate a case. This saga began on October 15, 2004, when Plaintiff’s counsel, Derrick Eley, failed to attend the initial pretrial conference as ordered, and failed to provide any input into the required Case Management Plan. (“CMP”)[ftnote 1] Over the course of this litigation, the Court has issued numerous orders noting Eley’s various missteps. [See Docket Nos. 17, 24, 45, 54, 67 and entries of September 22, 2004 and December 2, 2004 in connection with Docket Nos. 12 and 25.] Most recently, Eley failed to properly respond to Defendant’s October 28, 2004 discovery requests despite a June 20, 2005 Court order granting Defendant’s motion to compel and ordering Eley to fully respond. [Docket No. 45.]

As a result of Eley’s conduct, Defendant sought sanctions, including dismissal of this action. [Docket Nos. 48, 51.] The District Judge subsequently requested that the Magistrate Judge issue a Report and Recommendation on what sanctions, if any, should be imposed against the Plaintiff and/or his counsel for their purported failure to comply with the Court’s order of June 20, 2005. [Docket No. 50.]

While dismissal might be appropriate under these circumstances, the Court is reluctant to punish the Plaintiff with dismissal for the errors of his counsel. However, Defendant should not have to incur attorney’s fees necessitated by Eley’s utter disregard of his professional obligations. Accordingly, the Magistrate Judge recommends that Defendant’s request for sanctions be granted to the extent that Eley be required to reimburse the Defendant $2,500. In addition, the Magistrate Judge recommends that Eley be required to undertake certain other steps, as detailed below, in an effort to avoid a similar, future outcome.
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[1] This is just one of many such sagas in which Plaintiff’s counsel has found himself. See e.g., Phillips v. Ramco, Inc., 1:03-cv-0391-RLY-WTL (show cause order issued as a result of Eley’s failure to include client in settlement conference); Killibrew v. St. Joseph Hospital & Health Center, Inc., 1:03-cv-1497-DFH-VSS (case dismissed when Eley neglected to comply with order to file an amended complaint by a date certain); Haskins v. Federal Express, 1:03-cv-1720-DFH-TAB (case dismissed where Eley neither filed a response to defendant’s summary judgment motion nor timely requested an enlargement of deadline and where Eley did not abide by discovery deadline).

Posted by Marcia Oddi on November 21, 2005 06:02 PM
Posted to Ind Fed D.Ct. Decisions