Summary
ordering plaintiff to pay the defendants’ IME expenses as a result of plaintiff failing to appear for two scheduled IMEs
Summary of this case from Page v. Hertz Corp.Opinion
Civil Case No. 04-cv-02685-REB-MJW.
June 7, 2006
ORDER ADOPTING IN PART RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
The matter before me is the magistrate judge's Recommendations On Defendants' Joint Motion for Sanctions Pursuant to F.R.C.P. [sic] 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. [sic] 41(b) (Docket No. 71), Defendants' Supplement to Joint Motion for Sanctions Pursuant to F.R.C.P. [sic] 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. [sic] 41(b) (Docket No. 86), and Defendants' Second Supplement to Joint Motion for Sanctions Pursuant to F.R.C.P. [sic] 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. [sic] 41(b) [#129], filed May 5, 2006. No objections having been filed to the recommendations, I review them only for plain error. See Morales-Fernandez v. Immigration Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). With one limited exception, I finding no such error in the magistrate judge's recommended dispositions. Although I agree with the magistrate judge that this action must be dismissed for plaintiff's willful disregard of court orders and failure to prosecute, and that monetary sanctions are appropriate as well, I find that plaintiff should not be required to pay defendants' expenses relating to her first scheduled deposition. With that exception, I find and conclude that the recommendations should be approved and adopted.
This Standard pertains even though plaintiff is proceeding pro se. Morales-Fernandez, 418 F.3d at 1122.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendations On Defendants' Joint Motion for Sanctions Pursuant to F.R.C.P. [sic] 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. [sic] 41(b) (Docket No. 71), Defendants' Supplement to Joint Motion for Sanctions Pursuant to F.R.C.P. [sic] 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. [sic] 41(b) (Docket No. 86), and Defendants' Second Supplement to Joint Motion for Sanctions Pursuant to F.R.C.P. [sic] 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. [sic] 41(b) [#129], filed May 5, 2006, are APPROVED AND ADOPTED IN PART as an order of this court;
2. That Defendants' Joint Motion for Sanctions Pursuant to F.R.C.P. 37(d) and Involuntary Dismissal Pursuant to F.R.C.P 41(b) [#71], filed November 21, 2005, is GRANTED;
3. That Defendants' Supplement to Joint Motion for Sanctions Pursuant to F.R.C.P. 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. 41(b) [#86], filed December 12, 2005, is GRANTED;
4. That Defendants' Second Supplement to Joint Motion for Sanctions Pursuant to F.R.C.P. [sic] 37(d) and Involuntary Dismissal Pursuant to F.R.C.P. [sic] 41(b) [#108], filed February 14, 2006, is GRANTED;
5. That judgment SHALL ENTER on behalf of defendants, Randall S. Piper and Loans and Real Estate Group, Inc., and against plaintiff, Ann Parker, as to all claims and causes of action asserted herein;
6. That this action is DISMISSED WITH PREJUDICE for the reasons and in accordance with the rules set forth in the magistrate judge's recommendations; and
7. That defendants are AWARDED monetary sanctions against plaintiff to consist of (a) any reasonable expenses incurred, including attorneys' fees, as a result of plaintiff failing to attend her second noticed deposition; (b) any reasonable expenses incurred as a result of plaintiff's failure to attend the two scheduled IME exams; (c) any reasonable expenses, including attorneys' fees, incurred due to plaintiff's failure to appear for the any Final Pretrial Conference; and (d) any reasonable expenses, including attorneys' fees, incurred in preparing the motion for sanctions and its two supplements.