UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) KATHLEEN A. BREEN et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 05-654(RWR) ) RAY H. LAHOOD1 et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION AND ORDER

Federal flight service air traffic controllers sued alleging

that the government committed age discrimination by outsourcing

their jobs and terminating their federal employment. Three

former plaintiffs, Frank Matkins, Henry Ontiveros and Janice

Teed-Wilson, who were dismissed from this case for failure to

respond to a show cause order directed at plaintiffs who had

failed to respond to discovery requests and inquiries from

plaintiffs’ counsel, move for reconsideration. Because the

movants do not show that justice requires reconsideration, their

motions will be denied.

BACKGROUND

Plaintiffs filed this action on March 31, 2005, in response

to the defendants’ February 2005 announcement that it would

1 Secretary of Transportation Ray H. LaHood is substituted as a defendant in place of former Secretary Mary E. Peters. See Fed. R. Civ. P. 25(d). -2-

outsource their jobs and terminate their federal employment

effective on October 3, 2005. Plaintiffs allege age

discrimination by the FAA and its parent agency, the Department

of Transportation. On June 8, 2007, plaintiffs’ counsel moved to

withdraw as counsel from representing 714 of the 912 plaintiffs

involved in this case. Plaintiffs’ counsel asserted that on

February 16, 2007, they mailed a letter to all of the plaintiffs

that counsel represented, asking that the plaintiffs decide

whether to continue in the case as active plaintiffs, continue in

the case without being represented by plaintiffs’ counsel, or

request dismissal from the case. Approximately 700 plaintiffs

failed to respond to this letter. (Pls.’ Counsels’ Mot. to

Withdraw as Counsel for 714 Pls. (“Mot. to Withdraw”) at 2-3.)

On April 17, 2007, plaintiffs’ counsel sent another letter to the

plaintiffs who failed to respond to the first letter, enclosing

defendants’ discovery requests for response. Approximately 694

plaintiffs failed to respond to this letter. (Mot. to Withdraw

at 3-4.) Plaintiffs’ counsel’s motion to withdraw was granted

for twenty plaintiffs who specifically declared that they wanted

to proceed pro se, and denied as to all other remaining

plaintiffs. (Minute Order, September 14, 2007.) However, on

November 8, 2007, the plaintiffs who had not responded to counsel

or who had not responded to defendants’ discovery requests, were

ordered to show cause in writing by November 29, 2007, why they -3-

should not be dismissed from the case. (Order to Show Cause,

November 8, 2007.) That order warned that a plaintiff’s failure

to file a timely response with the Clerk would result in that

plaintiff and his or her claims being dismissed from this

action.2 On May 30, 2008, an order was entered dismissing the

plaintiffs, including Matkins, Ontiveros and Teed-Wilson, who

failed to respond to the order to show cause.3 Matkins,

Ontiveros and Teed-Wilson now seek reinstatement.

DISCUSSION

Under Rule 54(b) of the Federal Rules of Civil Procedure,

“any order or other decision, however designated, that

adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties does not end the action

as to any of the claims or parties and may be revised at any time

before the entry of a judgment adjudicating all the claims and

all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b).

2 The Order was unambiguous. It stated, in relevant part: “Each plaintiff listed in the Appendix to this Order is directed to show cause in writing by November 29, 2007, why his or her claim should not be dismissed from this case for failure to respond to defendants’ discovery demands and/or failure to communicate with his or her counsel. A plaintiff’s failure to file a timely response with the Clerk of Court for the United States District Court for the District of Columbia . . . will result in that plaintiff and his or her claims being dismissed from this action.” (Order to Show Cause, November 8, 2007 at 1.) 3 Thirty-three plaintiffs who either responded to orders to show cause, or whose mailed orders to show cause were returned as undeliverable, remained in the case. -4-

Under Rule 54(b), a trial court may grant reconsideration “as

justice requires.” Campbell v. U.S. Dept. of Justice,

(D.D.C. 2002). However, in order to promote

finality, predictability and economy of judicial resources, “as a

rule [a] court should be loathe to [revisit its own prior

decisions] in the absence of extraordinary circumstances such as

where the initial decision was clearly erroneous and would work a

manifest injustice.” Lederman v. United States,

(D.D.C. 2008) (quoting Christianson v. Colt Indus. Operating

Corp.,

(1988)). Reconsideration may be

warranted where there was a patent misunderstanding of the

parties, where a decision was made that exceeded the issues

presented, where a court failed to consider controlling law, or

where a significant change in the law occurred after the decision

was rendered. Singh v. George Washington Univ.,

(D.D.C. 2005). The moving party has the burden of

showing that reconsideration is warranted, and that some harm or

injustice would result if reconsideration were to be denied. In

Def. of Animals v. Nat’l Insts. of Health,

(D.D.C. 2008).

“‘When circumstances make such action appropriate,’ a

district court may dismiss an action on its own motion because of

a party’s failure to comply with court orders designed to ensure

orderly prosecution of the case.” Bristol Petroleum Corp. v. -5-

Harris,

(D.C. Cir. 1990) (quoting Link v.

Wabash R.R. Co.,

(1962)); see also Wrenn v.

Walters,

(D.C. Cir. 1988) (upholding dismissal of

action for plaintiff’s failure to appear at scheduled court

date); cf. Mikkilineni v. Penn Nat’l Mut. Cas. Ins. Co.,

(D.D.C. 2003) (upholding the dismissal of a

pro se litigant’s case for malfeaseance). Plaintiffs are

expected to use reasonable diligence in participating in

litigation, and plaintiffs are expected to maintain communication

with their counsel. See Ake v. Mini Vacations, Inc.,

(M.D. Fla. 1997) (denying plaintiff’s motion for relief

from judgment dismissing her claim for failing to respond to an

order to show cause, because plaintiff “had a duty to monitor the

progress of the case, communicate with her attorney, and to

inquire of the Court as to the status of her case in the event

she is unable to contact her attorney”); see also Bomate v. Ford

Motor Co.,

(D.C. Cir 1985) (affirming dismissal

where a plaintiff failed to cooperate with her lawyers and failed

to comply with a pretrial order, and where the trial court warned

plaintiff of the consequences of further delays in the pretrial

process); Killingham v. Dist. of Columbia Serv. for Independent

Living, Inc., Civil Action No. 87-2713 (JGP),

, at

*7 (D.D.C. 1998)(a diligent client may reasonably rely on

counsel, but a party may not “remain ignorant of a pending matter -6-

in the hope that” the matter will be resolved in its favor). “At

a certain point, a defendant ought to be freed of the anxiety of

litigation that a plaintiff has failed to diligently pursue.”

Williams v. Dist. of Columbia Water Auth., Civil Action No. 01-

2110 (RWR),

, at *3 (D.D.C. May 24, 2005)

(dismissing plaintiff’s action where plaintiff failed to engage

in discovery for a period of approximately 42 months).

Here, no movants show that the initial decision to dismiss

them from the case for failing to respond to the order to show

cause was erroneous, exceeded the issues presented, or failed to

consider controlling law, or that there was a significant change

in the law that occurred after the decision. While all three

movants claim that they did not receive the order4 (or that they

were unaware of the order they did receive), none of them

provides any justification for failing to stay in communication

with plaintiffs’ counsel to monitor the progress of the

litigation and learn of their obligation to respond to the order

4 Matkins does not explain why he did not receive the order to show cause, other than to assert that he did not receive other mail from plaintiffs’ counsel. (Matkins Mot. for Modification, at 2.) Ontiveros seems to claim that as a result of falling victim to mail fraud, he instructed his mother (who was apparently tasked with receiving his mail) to throw out “official-looking letters.” (Ontiveros’ Mot. for Recons. at 3.) Teed-Wilson claims that she did not receive the letter because she moved several times between 2006 and 2008, and because she went through a divorce. (Teed-Wilson’s Mot. for Recons. at 3-4.) Nothing in the record indicates that plaintiffs’ counsel failed to serve these plaintiffs with the order to show cause, or that the mailings to them were returned as undeliverable. -7-

to show cause in a timely fashion. The obligation to assure that

an attorney has current information about how to promptly and

successfully contact a client rests with the client, not with the

attorney. The same is true with respect to pro se parties

keeping a court informed of the party’s address and telephone

number. See LCvR 5.1(e)(1). Unfortunately for the movants here,

they did not abide by their obligations. The motions to

reconsider will be denied.

CONCLUSION AND ORDER

Because Matkins, Ontiveros, and Teed-Wilson do not

demonstrate that justice requires granting their motions for

reconsideration, it is hereby

ORDERED that their motions [203, 213, 234] for

reconsideration of the order dismissing them from the case be,

and hereby are, DENIED. The Clerk shall mail a copy of this

order to each of the three movants. It is further

ORDERED that the Clerk substitute as a defendant Ray H.

LaHood for Mary E. Peters.

SIGNED this 17th day of February, 2009.

/s/ RICHARD W. ROBERTS United States District Judge