The opinion of the court was delivered by: Magistrate Judge Craig B. Shaffer
ORDER RE: JANUARY 5, 2006 ORDER TO SHOW CAUSE
This civil action comes before the court on Zeng's "Responses to Court Order to Show Cause" (filed January 17, 2006) (doc. # 123).
This civil action was filed on September 15, 2004 in the United States District Court for the District of Colorado. Pursuant to the November 17, 2004 Order of Reference (doc. # 9), this civil action was referred to the Magistrate Judge to, inter alia, "[h]ear and determine any pretrial matter. . . ." On January 20, 2005, a 7-day trial to a jury was set to commence on February 21, 2006. On June 20, 2005, counsel was permitted to withdraw from representing Zeng. The court explained to Zeng on June 20, 2005 that, until he found a new attorney, he represented himself and was bound by the Federal Rules of Civil Procedure and the Local Rules for the District of Colorado. (See doc. # 34). Also on June 20, 2005, Zeng requested "a 90-day extension on all discovery deadlines in this matter" in order to "obtain new counsel to prosecute this case." (See doc. # 28 at ¶ 4). HP did not object to a 90-day extension and Magistrate Judge Shaffer granted Zeng's request to extend discovery deadlines for 90 days. Since June 20, 2005, Zeng has been proceeding pro se.
HP commenced Zeng's deposition on March 8, 2005 in Colorado. The parties agreed that HP would have four additional hours to complete Zeng's deposition. (See Motion to Compel and for Sanctions (doc. # 42), Exhibit 1 (Zeng deposition) at p. 255 and Exhibit 2 (Craigmile Declaration) at ¶¶ 2-3). When Zeng's counsel withdrew on June 20, 2005, Zeng's deposition had not yet been completed. Since the filing of this case, Zeng has relocated from Colorado to California. (See Complaint at p. 16).
On August 9, 2005, HP wrote to Zeng requesting dates to complete his deposition. (See Exhibit 3 to doc. # 42). Zeng did not provide any dates, responding instead that he needed to find an attorney before he could be deposed and that the deposition must take place in California. (See Exhibit 4 to doc. # 42 at pp. 2-3). HP responded that the deposition should take place in Colorado, where the case was filed. (See Exhibit 5 to doc. # 42). On September 22, 2005, HP again wrote to Zeng requesting dates to complete his deposition. (See Exhibits 6 and 7 to doc. # 42). On September 30, 2005, HP served a notice of deposition setting Zeng's deposition on October 24, 2005. (See Exhibit 7 to doc. # 42). On October 4, 2005, HP wrote to Zeng requesting that he supplement his responses to interrogatories and document requests. (See Exhibit 8 to doc. # 42). Zeng responded on October 18, 2005 and October 20, 2005 that he was unable to travel to Colorado in October or for the next two months "due to my work schedule in my company as well as family reason [sic]" and that he needed more time to provide supplemental responses to interrogatories and document requests. (See Exhibits 9 and 10 to doc. # 42). On October 24, 2005, Zeng failed to appear for the completion of his deposition.
Between June 20, 2005 and November 15, 2005, no matters were brought to the court's attention other than a discovery dispute. On December 2, 2005, Zeng moved to "vacate the trial date" and "amend the Scheduling Order to extend all discovery deadlines for 180 days. . . ." (See doc. # 51). Zeng again moved on December 8 and 9, 2005 to vacate the trial date and extend the discovery deadlines. (See docs. # 63 and # 65). HP objected to Zeng's requests. (See doc. # 60). On December 13, 2005, District Judge Babcock denied Zeng's three motions to vacate the trial date and amend the Scheduling Order. (See doc. # 74). On December 15 and 19, 2005, Zeng again moved to vacate the trial date and reset the Final Pretrial Conference and the Final Trial Preparation conference. (See docs. # 82, # 84, and # 92). Judge Babcock later denied Zeng's motions. (See doc. # 125).
While Zeng asserted in his motions filed in December 2005 that he had not been afforded sufficient time to find a new attorney or to prepare for trial, approximately six months had passed since June 20, 2005, during which Zeng could have been seeking counsel and/or proceeding with discovery in the case. The parties held a conference pursuant to Fed. R. Civ. P. 26(f) on December 22, 2004, after which Zeng could have begun formal discovery. See Fed. R. Civ. P. 26(d). The parties' Scheduling Order was entered on January 19, 2005 while Zeng was still represented by counsel. The Scheduling Order established a discovery deadline on August 15, 2005, affording Zeng eight months to complete discovery. (See doc. # 12). By June 20, 2005, Zeng's former counsel had completed expert disclosures pursuant to Fed. R. Civ. P. 26(a)(2), served written discovery, and taken three of the ten fact depositions authorized by the Scheduling Order. (See Order dated June 20, 2005) (doc. # 36) at p. 3). While represented by counsel, Zeng served two sets of discovery requests that HP timely answered. (See Exhibit A to HP's Response to Plaintiff's Motion for Leave to Serve Discovery Out of Time (doc. # 89) at ¶ 2). On June 20, 2005, the court extended the discovery cutoff by 90 days to November 15, 2005. On June 20, 2005, the court specifically advised Zeng that he had five months remaining to complete discovery and that he could serve written discovery up to 34 days before the discovery cutoff. (See Transcript of June 20, 2005 hearing (doc. # 52) at pp. 17, 24).
Following the June 20, 2005 hearing, Zeng did not obtain new counsel or conduct any discovery. On September 22, 2005, HP served its First Set of Requests for Admission on Zeng. (See Exhibit A to doc. # 89 at ¶ 3). On October 4, 2005, HP served its Second Set of Interrogatories and Requests for Production of Documents on Zeng. (See Exhibit A at ¶ 3, Exhibit A-1, and Exhibit A-2 to doc. # 89). Zeng did not respond to either of HP's discovery requests. (See Exhibits A-3, A-4, A-5, A-6, A-7, and A-8 to doc. # 89).
Magistrate Judge Shaffer held telephonic discovery conferences on November 15 and November 29, 2005. On November 15, 2005, the court directed Zeng to respond to HP's First Set of Requests for Admission and Second Set of Interrogatories and Requests for Production of Documents. On November 29, 2005, HP indicated that it had not received any discovery requests from Zeng since his counsel had withdrawn. Zeng asserted that he had sent HP a third set of interrogatories and requests for documents, but could not locate a copy of that discovery request. (See Transcript of November 29, 2005 hearing (doc. # 71) at p. 35).
The discovery deadline was November 11, 2005. In a letter dated November 14, 2005, Zeng for the first time identified 146 witnesses. At the November 29, 2005 hearing, Zeng indicated that he would be listing 200 witnesses. (See, e.g., Transcript of November 29, 2005 hearing (doc. # 71) at pp. 16, 32). Also on November 29, 2005, Zeng asked leave "to take fact deposition of about 50 deponents in this case." (See Transcript of November 29, 2005 hearing (doc. # 71) at p. 15). On December 2, 2005, Zeng sought additional time to respond to HP's Motion to Compel and for Sanctions, again citing his employment and family obligations. (See doc. # 57). Then, on December 12, 2005, Zeng sought permission to serve discovery requests after the discovery deadline. (See doc. # 66).
Between December 12, 2005 and January 17, 2006, Zeng filed numerous motions seeking to, inter alia, transfer venue, vacate the trial date, and strike certain filings by HP. On December 14, 2005, Zeng filed a "Motion for Sanction and Discipline Actions" (doc. # 79), accusing HP's counsel of "illegal conduct in litigation," among other things.
This case came before Magistrate Judge Shaffer on January 4, 2006 for a final pretrial conference. Counsel for HP appeared in person. Zeng did not appear. On December 28, 2005, the court received an incomplete Final Pretrial Order that did not adequately identify Zeng's exhibit list or witness list.
Zeng alleges that he was unaware that the final pretrial conference was set on January 4, 2006. However, the record belies his allegation. On June 20, 2005, Zeng advised the court of his current address and telephone number. In a written Order dated June 20, 2005 (doc. # 36), the court set the final pretrial conference on January 4, 2006. The Order was mailed to Zeng at the address provided to the court by Zeng on June 20, 2005. The court's records indicate that the Order was not returned in the mail as undeliverable. The record reveals that Zeng was notified that a final pretrial conference was set on January 4, 2006. (See, e.g., doc. # 92 at ¶ 1 p. 2; Exhibits A-1, A-2, A-3, B-1, and B-5 to proposed Final Pretrial Order (doc. # 102), doc. # 103). Zeng's requests filed on December 16 and 19, 2005 to vacate the trial date and "to reset . . . the final pretrial conference . . ." (see docs. # 87 and # 92) indicate that he was aware a pretrial conference had been scheduled.
Due to personal circumstances, Zeng refuses to travel to Colorado before March 28, 2006. (See, e.g., doc. # 92; Exhibits A-2, A-3, B-1, B-2, B-3 to proposed Final Pretrial Order (doc. # 102); Zeng's Responses to Court Order to Show Cause (doc. # 123) at ¶ 16). Zeng has indicated to the court that he cannot and will not travel outside of Northern California before March 28, 2006, including Plaintiff's appearance in deposition and Plaintiff's appearance in Court for the Final Pretrial Conference and the Final Trial Preparation Conference in January 2006 and the trial set February 21, 2006." (See doc. # 92 at ¶ 1 p. 2). Zeng has further refused to participate in any telephone conference with defense counsel to discuss the preparation of a Final Pretrial Order. (See, e.g., Exhibits A-2, A-3, B-1, B-2 at p. 4, B-3 to proposed Final Pretrial Order (doc. # 102); doc. # 103).
Pursuant to D.C.COLO. LCivR 41.1, on January 5, 2006, the Magistrate Judge ordered Zeng to show cause why this civil action should not be dismissed for failure to appear at the January 4, 2006 final pretrial conference, failure to prosecute this civil action, and failure to comply with the court's orders, the Local Rules of Practice for the United States District Court for the District of Colorado, and the Federal Rules of Civil Procedure. The court advised Zeng that failure to timely respond to the January 5, 2006 Order to Show Cause may result in dismissal of the Complaint without further notice.
On January 17, 2006, District Judge Babcock sua sponte vacated the Final Trial Preparation Conference set on January 27, 2006 and the jury trial set to commence on February 21, 2006. (See docs. # 125 and # 118 at pp. 7-8). Judge Babcock noted that pending at this time are HP's Motion for Summary Judgment, to which Zeng has filed a response and HP has filed a reply (see docs. # 43, # 106, # 110, # 111, and # 121) and HP's Motion to Dismiss for Failure to Prosecute, which Zeng has moved to strike (see docs. # 115 and # 124). Judge Babcock further noted that "there has been no final pretrial order" and that "all pleadings merge into the final pretrial order and that is the document that controls the trial." (See doc. # 118 at pp. 7-8). "It is a critical stage of the proceedings and a critical document. We don't have a final pretrial order." (See doc. # 118 at ...