Opinion
CV-22-00427-PHX-DWL
02-14-2024
Sandra S Hoppmann, Plaintiff, v. Pampered Pets & Plants Incorporated, et al., Defendants.
ORDER
Dominic W. Lanza, United States District Judge
On February 8, 2024, the Court issued an order requiring Plaintiff Sandra Hoppmann and Defendant Susan Hall, both of whom are now proceeding pro se, to appear at a status conference on February 14, 2024, to discuss a potential trial date and the prospects of settlement. (Doc. 64.) At the hearing, which occurred earlier today, Hoppmann appeared but Hall did not.
Hall's failure to appear for today's hearing-and, thus, failure to comply with the February 8, 2024 order compelling her attendance at that hearing-implicates Rule 16(f) of the Federal Rules of Civil Procedure, which provides that “[o]n motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party . . . fails to appear at a scheduling or other pretrial conference [or] . . . fails to obey a scheduling or other pretrial order.” Id. One of the “just orders” authorized by Rule 16(f) is the entry of a default judgment as to liability against a defendant who fails to appear at a pretrial conference and/or fails to obey a pretrial order. See, e.g., In re Dad's Kid Corp. Baseball Card Trademark & Copyright Infringement Litig., 1994 WL 794763, *3 (C.D. Cal. 1994) (“The Advisory Committee comments to [Rule 16(f)] make clear that severe sanctions such as entry of default are available . . . . Several courts in this Circuit and elsewhere have applied Rule 16(f) to enter judgment against a defendant . . . .”); Hal Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1136, 1139 (7th Cir. 1987) (affirming where “when Kirsh failed to appear at the final pretrial conference, the district judge ordered entry of a default judgment against her”).
Although it likely would be within the Court's discretion to enter a default judgment as to liability against Hall under Rule 16(f) right now, without any further process, the Court notes the possibility that Hall may not have been subjectively aware of the February 8, 2024 order setting today's hearing. Hall's last address of record is 901 East Utopia Road, Phoenix, AZ 85024. (Doc. 46 at 6.) Accordingly, that is the address to which the Clerk sent the February 8, 2024 order. However, in a recent filing that addressed an unrelated issue, Hall seemed to indicate that her current address is 27777 N. Black Canyon Hwy., Apt. 1078, Phoenix, AZ 85085. (Doc. 60.) Although it was Hall's responsibility to alert the Court of any changes to her address, see LRCiv 83.3(d), these circumstances suggest that Hall may not have been aware of today's hearing. Because caution should be exercised before imposing the drastic sanction of a default judgment, the Court concludes that the best path forward is to provide Hall an opportunity to show cause why the “just order” of a default judgment as to liability should not be entered against her. Cf. Greys Ave. Partners, LLC v. Theyers, 2021 WL 8322477, *1 (D. Haw. 2021) (after defendant did not appear for the final pretrial conference, court issued an order to show cause why sanctions including entry of default judgment should not be entered).
“In determining whether default or dismissal is appropriate pursuant to Rule 16(f), the Court should weigh (1) the public's interest in expeditious resolution of litigation, (2) the Court's need to manage its docket, (3) the risk of prejudice to the non-offending party, (4) the availability of less drastic sanctions, and (5) public policy favoring disposition of cases on the merits.” In re Dad's Kid Corp., 1994 WL 794763 at *3 (citation omitted). If, as it appears, Hall simply failed to show up for a trial setting conference, these factors would weigh in favor of granting a default judgment as to liability-such non-participation undermines the public's interest in expeditious resolution, bogs down the Court's docket, is deeply prejudicial to Hoppmann, and cannot be remedied through less drastic sanctions.
On the other hand, the Court notes that Hall sent the filing containing the Black Canyon Highway address (Doc. 60) in response to an order that was mailed to the Utopia address on January 19, 2024. (Doc. 59.) This suggests that Hall may still be receiving items mailed to the Utopia address, including the February 8, 2024 order setting today's hearing.
Accordingly, IT IS ORDERED that Hall must show cause, in a writing filed with the Court by February 21, 2024, why a default judgment should not be entered against her as to liability. If Hall contends that default judgment as to liability is an excessive sanction, Hall must also identify some proposed lesser sanction that would compensate Hoppmann for the expense and hassle associated with attending today's hearing. Hall is expressly warned the failure to comply with this order may result in additional sanctions, up to and including a default judgment as to liability.
IT IS FURTHER ORDERED that the Clerk mail this order both to Hall's address of record at 901 East Utopia Road, Phoenix, AZ 85024 and to Hall's potential alternative address at 27777 N. Black Canyon Hwy., Apt. 1078, Phoenix, AZ 85085.