United States District Court, D. Colorado
ORDER TO PLAINTIFF SWAN GLOBAL TO SHOW CAUSE WHY THIS
CASE SHOULD NOT BE DISMISSED WITH PREJUDICE PURSUANT TO FED.
R. CIV. P. 41(b)
N.
Reid Neureiter Magistrate Judge
This
matter came before the Court on February 6, 2019 for a
hearing (Dkt. #37) on Defendant Thomas Richard Young's
(“Mr. Young”) Motion to Dismiss Pursuant to
Fed.R.Civ.P. 41(b) (Dkt. #25). Swan Global did not appear at
the hearing. Only after attempts by my chamber's staff to
reach either Swan Global's attorney of record or Swan
Global's company headquarters did an attorney call back,
saying he had only recently been retained, and effectively
conceding he was unprepared to address the substance of the
motion to dismiss.
As
outlined below, Plaintiff Swan Global is ordered to SHOW
CAUSE in writing by February 20, 2019 why
this matter should not be dismissed with prejudice as a
sanction for (1) making misrepresentations or material
omissions to opposing counsel and the Court; (2) failing to
file a “short and plain” statement of the case,
and failing to make it either shorter or plainer in multiple
amendments; (3) failing to respond in a timely manner to
Defendant's Motion to Dismiss; (4) failing to have
replacement counsel timely enter an appearance to replace
counsel who has twice sought to withdraw from the case, even
after being ordered to do so by the Court; and (5) failing to
appear at the February 6, 2019 motions hearing.
I.
Procedural History of the Case
The
case was originally filed in the District Court for La Plata
County, Colorado on November 16, 2018. Defendant Young
removed the case to federal court on December 4, 2018. (Dkt.
#1.)
Swan
Global is a Durango, Colorado-based company providing
investment management services. Defendant Young lives in
Illinois. The Complaint alleges that Mr. Young was an
independent contractor for Swan Global from 2013 until
January 31, 2016, when he was terminated for alleged breach
of contract, fraud, and non-performance. Using 182
paragraphs, the original twenty-four-page Complaint alleged
seventeen claims for relief against Mr. Young, including
everything from breach of contract, to theft of confidential
information in violation of Colorado statute, to intentional
interference with contractual relations, to fraud, conspiracy
and conversion. (Dkt #1-1.)
On
November 26, 2018, while the case was still in La Plata
County District Court, Swan Global filed an Amended
Complaint. (Dkt. #4.) The twenty-five-page Amended Complaint
upped the number of paragraphs to one hundred ninety-nine and
the number of counts to twenty-three. Added were claims for,
among other things, civil theft and injunctive relief.
The
removed case was assigned to Magistrate Judge Nina Wang on
December 6, 2018. Judge Wang issued an order setting a
scheduling conference for February 11, 2019, and ordered the
parties to complete and file the Consent/Nonconsent Form by
January 28, 2019. (Dkt. #11.)
Attorney
Leslie Fourton, Jr. entered an appearance in this matter on
behalf of Swan Global on December 14, 2018. (Dkt. #14.) Mr.
Fourton was the attorney who had signed and filed the
original and amended Complaints on Swan Global's behalf.
On
December 30, 2018, Mr. Fourton filed two versions of a Third
Amended Complaint, Dkt. #18 - later withdrawn - and Dkt. #20.
The not-withdrawn Third Amended Complaint (Dkt. #20) added
another sixty-nine paragraphs and another eighteen pages to
the complaint, taking the document to forty-three pages in
length. On its face, the Third Amended Complaint is not a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2).
On the
same date, December 30, 2018, Fourton also filed a Motion to
Withdraw as Counsel. (Dkt. #19.) Attorney Fourton explained
in his motion to withdraw that Swan Global was eliminating
his position as General Counsel: “[Swan Global] is
eliminating the General Counsel position in its entirety as
of December 31, 2018. Therefore, it is necessary to withdraw
as counsel for Plaintiff/claimant in this matter.”
(Dkt. #19 at 1.) The December 30, 2018 withdrawal motion did
not comply with our Local Rules in that it did not give an
appropriate warning to the client. See
D.C.COLO.LAttyR 5(b) (“Where the client of the
withdrawing attorney is a corporation, partnership, or other
legal entity, the notice shall state that such entity may not
appear without counsel admitted to the bar of this court, and
that absent prompt appearance of substitute counsel,
pleadings and papers may be stricken, and default judgment or
other sanctions may be imposed against the entity.”)
On
January 2, 2019, Judge Wang issued a minute order noting that
withdrawal by Mr. Fourton would leave Swan Global without
representation, and set a hearing for January 9, 2019. Judge
Wang ordered “that Plaintiff's counsel and a
representative from Plaintiff must appear in person.”
(Dkt. #21.)
Judge
Wang held a hearing on January 9, 2019. (Dkt. #22.) Contrary
to Judge Wang's order, neither Mr. Fourton nor a
representative of Swan Global appeared in person. Instead,
Mr. Fourton and Robert Swan appeared by telephone. The
transcript of those proceedings is found at Docket No. 36.
Judge
Wang explained to Mr. Swan that Swan Global, as a corporate
entity, could not appear without a lawyer. (Dkt. #36 at
15-16, 18-19.) Judge Wang also noted that Swan Global would
have to a have a lawyer to appear at a scheduled February 11,
2019 scheduling conference, and to comply with the ...