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Johns v. Dillon Companies, Inc.

United States District Court, D. Colorado

November 19, 2014

ERIC JOHNS, Plaintiff,
DILLON COMPANIES, INC., d/b/a King Soopers, Inc., a Foreign Corporation, and/or THE KROGER CO., d/b/a King Soopers, Inc., a Foreign Corporation, JANE DOE (an unidentified employee of Bimbo Bakeries USA, Inc.), and BIMBO BAKERIES USA, INC., a Foreign Corporation, Defendants.


MICHAEL J. WATANABE, Magistrate Judge.

This case is before this court pursuant to an Order of Reference issued by Judge Raymond P. Moore on August 19, 2014. (Docket No. 11.)

Plaintiff Eric Johns has not meaningfully participated in this litigation since its removal to federal court. After he failed to attend the Rule 16 Scheduling Conference, the Court issued an Order to Show Cause. (Docket Nos. 18 & 20.) Plaintiff failed to respond to the Order in any written, telephonic, or other communications with chambers; he also failed to appear at the Show Cause Hearing set on November 19, 2014. (Docket No. 24.) In light of the foregoing, the Court hereby RECOMMENDS that this case be dismissed with prejudice.

Factual Background

Plaintiff filed this lawsuit in Jefferson County Combined Courts on July 3, 2014. (Docket No. 4.) The Complaint alleges that, while shopping at King Soopers, an employee pushing a bread cart ran into Plaintiff-causing him to fall to the ground and sustain severe injuries including a ruptured biceps. ( Id. ¶ 7.) Plaintiff filed his suit pro se, but had the assistance of an attorney at Levine Law, LLC in drafting his pleadings and filing his Complaint. ( Id. p.5; Docket No. 1-3, p.3.) He also moved for and received leave to proceed in forma pauperis. (Docket No. 1-10.) On July 29, 2014, he filed proof of service on Defendants Dillon Companies (service effected by the Denver County Sheriff) and Bimbo Bakeries (service effected by the Adams County Sheriff). (Docket Nos. 5, 6, & 7.) Dillon Companies filed its Answer in state court on August 4, 2014 (Docket No. 1-14), and Bimbo Bakeries filed its Answer in state court on August 7, 2014 (Docket No. 1-15). It appears no other documents were filed, or proceedings held, in state court. (Docket No. 13.)

After the lawsuit was filed, counsel for Dillon Companies spoke with Plaintiff, who confirmed that he sought more than $100, 000 in damages. (Docket No. 1-2.) Dillon Companies and Bimbo Bakeries then removed the case to this Court, on August 18, 2014. (Docket No. 1.) On August 20, 2014, the Court entered an Order Setting Scheduling/Planning Conference. (Docket No. 12.) The conference was later rescheduled upon Defendants' motion. (Docket No. 16.) In that motion, Defendants represented that:

• Plaintiff did not oppose the motion to reschedule (Docket No. 14, ¶ 1);
• Defendants had made four unsuccessful phone calls, on September 10th, 16th, 23rd, and 24th, 2014, in an effort to meet and confer with Plaintiff under Rule 26(f) ( id. ¶ 3);
• Defendants reached Plaintiff on September 29, 2014, and agreed to a Rule 26(f) conference on the following day ( id. ¶ 4); and
• The Parties held a Rule 26(f) conference on September 30, 2014, as planned, and agreed to exchange initial disclosures under Rule 26(a) within two weeks ( id. ¶ 5).

The rescheduled Rule 16 scheduling conference was held on October 20, 2014. (Docket No. 18.) Plaintiff failed to appear at the Rule 16 scheduling conference, did not seek a continuance, and did not telephone the Court at the time set for the conference to make the court aware of any unavoidable reason for noncompliance. ( Id. ) The Court issued an Order to Show Cause, explaining:

On August 20, 2014, this court entered an Order (Docket No.12) setting a scheduling conference for October 7, 2014, which was later continued at Defendants' motion to October 20, 2014, at 10:00 a.m. Plaintiff Eric Johns did not appear at the scheduling conference. No entry of appearance was made by any attorney on Plaintiff's behalf; the court received no motion, phone call, or other communication from Plaintiff regarding the scheduling conference. The weather in Denver was clear, with no indication of hazardous or inclement conditions that might have caused delay. The court granted a ten-minute grace period and began the scheduling conference without Plaintiff at 10:10 a.m.
Michael Lancto (counsel for Defendants Dillon Companies and the Kroger Companies) and Catherine Ruhland (counsel for Defendant Bimbo Bakeries USA Inc.) appeared. They reported that they had met with Plaintiff on September 30, 2014, to discuss disclosures and a proposed scheduling order. At that point they directed Plaintiff to the form scheduling order on the court's website. Plaintiff confirmed that he had been receiving Ms. Ruhland's e-mails. The parties agreed that Plaintiff would provide a draft scheduling order by October 7, 2014. Ms. Ruhland and Mr. Lancto stated that they received no draft from Plaintiff.
Mr. Lancto stated that he had received a phone call from an attorney at Franklin Azar & Associates early last week (on or about October 13, 2014), but on October 17, 2014, the attorney called to inform Mr. Lancto that he had declined to take Plaintiff's case. Ms. Ruhland stated that she spoke with Plaintiff on October 14, 2014, by telephone; Plaintiff indicated that he would provide initial disclosures the following day. Ms. Ruhland did not receive any disclosures, and did not receive any response to a follow-up e-mail.

(Docket No. 20.)

At the Scheduling Conference, the Court ordered that Plaintiff's Rule 26(a)(1) disclosures should be completed on or before November 3, 2014. (Docket No. 18, p.2.) The Order to Show Cause further ordered:

that on November 19, 2014, at 10:30 a.m. in Courtroom A-502, Fifth Floor, Alfred A. Arraj U.S. Courthouse, 90119th Street, Denver, Colorado, a Show Cause Hearing will be held. At this hearing, Plaintiff Eric Johns shall appear in person and show cause why this case should not be dismissed pursuant to Fed.R.Civ.P. 16(f) and/or 41(b). In addition to a recommendation that this action be dismissed, other sanctions that may very well be imposed are defendant's attorney fees and costs and a finding and order of contempt. Also, Plaintiff Eric Johns shall provide proof of service for Defendant Jane Doe, ...

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