Opinion
NO. 3-03-CV-1102-P.
April 2, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Hai Nguyen, appearing pro se, was ordered to attend a status conference on March 18, 2004 and a show cause hearing on April 2, 2004. Because Nguyen failed to appear at either hearing as required, his pleadings should be stricken and an interlocutory default judgment entered against him.
I.
On May 21, 2003, Plaintiff DirecTV, Inc. sued Hai Nguyen for violations of the Cable Communications Policy Act of 1984, 47 U.S.C. § 521, et seq., the Electronic Communications Policy Act of 1986, 18 U.S.C. § 2510, et seq., and Texas law. As part of a comprehensive pretrial management plan in this and other cable piracy cases filed by plaintiff, the court ordered the parties to mediation during the weeks of February 9, 2004 and March 1, 2004. All non-settling parties were directed to attend a status conference on March 18, 2004 at 9:00 a.m. before U.S. Magistrate Judge Jeff Kaplan. See ORDER, 1/29/04. The order provides that "[a]ny attorney or unrepresented defendant who fails to attend this conference will be subject to sanctions, including without limitation an order striking out pleadings or parts thereof and rendering a judgment by default." Id. at 2. Nguyen, who is not represented by counsel, was duly notified of the status conference but failed to appear. This prompted the court to schedule a show cause hearing for April 2, 2004 at 8:30 a.m. By order dated March 24, 2004, Nguyen was directed to appear at this hearing, "then and there to show cause why he should not be sanctioned for failing to attend the status conference on March 18, 2004." SHOW CAUSE ORDER, 3/24/04. Once again, Nguyen was warned that "[s]uch sanctions may include an order striking defendant's answer and rendering a judgment by default." Id. (citations omitted). A copy of this show cause order was mailed to Nguyen at his address. However, he failed to appear at the hearing and has not communicated with the court regarding his absence.
The only address provided by Nguyen is a business at which he is no longer employed. After learning where Nguyen resided, counsel for plaintiff attempted to serve him with the show cause order. When counsel was unable to effect personal service, a copy of the order was posted on Nguyen's front door. The court finds that this was adequate notice for Nguyen to appear at the show cause hearing.
II.
Rule 16(f) of the Federal Rules of Civil Procedure provides:
If a party or a party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference . . . the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D).
FED. R. CIV. P. 16(f). Among the sanctions contemplated by this rule are "[a]n order striking out pleadings or parts thereof . . . or rendering a judgment by default against the disobedient party." FED. R. CIV. P. 37(b)(C). The entry of a default judgment is an extreme sanction and should be imposed only "in the face of a clear record of delay or contumacious conduct by the [party]." SEC v. First Houston Capital Resources Fund, Inc., 979 F.2d 380, 382 (5th Cir. 1992), quoting Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir. 1967). The court cannot default an offending party "unless [it] first finds that a lesser sanction would not have served the interests of justice." First Houston, 979 F.2d at 382, quoting McNeal v. Papasan, 842 F.2d 787, 793 (5th Cir. 1988).
The record in this case documents a clear history of delay and contumacious conduct on the part of defendant. Nguyen was ordered to appear at a status conference on March 18, 2004 and a show cause hearing on April 2, 2004. Both times he was warned that the failure to appear may result in the imposition of sanctions, including "an order striking out pleadings or parts thereof and rendering a judgment by default." See ORDERS, 1/29/04 3/24/04. Nguyen did not attend the status conference or the show cause hearing and has not communicated with the court regarding his absence. Such contumacious conduct justifies the imposition of extreme sanctions. See, e.g. Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986) (dismissal warranted where plaintiff failed to attend pretrial conference after judge warned that he had "one last opportunity" to comply with court's orders); Gonzales v. HTT Architects, Inc., 1998 WL 574381 at *2 (N.D. Tex. Aug. 31, 1998) (Kaplan, M.J.) (default judgment entered against defendant corporation for failure to obtain counsel or appear at conference).
The court has considered alternate sanctions. However, lesser sanctions would not serve the interests of justice or advance the disposition of this case on the merits. No sanction short of a default judgment would enable the court to rid its docket of this matter.
RECOMMENDATION
Defendant Hai Nguyen failed to appear at two court hearings without justification or excuse. As a result, sanctions should be imposed under Fed.R.Civ.P. 16(f). Nguyen's pleadings should be stricken and an interlocutory default judgment entered against him on the issue of liability. Plaintiff should be required to submit evidence to the court on the issue of damages and move for the entry of a final default judgment against defendant within 10 days after these findings are adopted by the district judge.
A copy of this report and recommendation shall be sent to Hai Nguyen and all counsel of record. Any party may file written objections to this recommendation by April 16, 2004. The failure to file written objections shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).