Blaisdell v. City of Rochester, et al. CV-07-390-JL 08/10/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

George Blaisdell

v. Civil N o . 07-cv-390-JL Opinion N o .

City of Rochester et a l .

SUMMARY ORDER

This case involves pro se plaintiff’s claim under

for violations of his Fourth Amendment rights when police

searched and towed his van. This court has jurisdiction under

(federal question) for plaintiff’s § 1983 claims.

Between 2008 and the present, George Blaisdell, a pro se

plaintiff with health and car troubles, repeatedly failed to

comply with discovery and other pretrial orders. Most recently,

the plaintiff failed to comply with the court’s April 8 , 2010

order to pay costs and fees, levied for failure to comply with a

previous discovery order, and to appear for his deposition.

Blaisdell v . City of Rochester, N o . 1:07-cv-390 (D.N.H. April 8 ,

2010) (order on motion to dismiss). To date, the plaintiff has

not paid the ordered costs and fees, nor has he fully or

adequately answered deposition questions.1 The defendants

1 When questioned by the court during a show cause hearing, plaintiff explained that he did not know the answers to the noticed the court regarding the plaintiff’s failure to comply

with the April 8th order and requested dismissal for lack of

prosecution.

After a court ordered show cause hearing, and upon review of

the lengthy procedural history, the plaintiff continues to

exhibit a disregard for the court’s orders and future compliance

is unlikely. The plaintiff’s case is dismissed for failure to

cooperate in discovery and failure to prosecute. See Fed. R.

Civ. P. 37(b)(2)(C); Fed. R. Civ. P. 41(b).

I. APPLICABLE LEGAL STANDARD

Under a district court’s inherent power to manage its own

docket and prevent undue delay, the court has discretion to

dismiss a case for a party’s failure to prosecute or comply with

court orders. Fed. R. Civ. P. 41(b); see Torres-Alamo v . Puerto

Rico,

0 , 25 (1st Cir. 2007) (upholding dismissal when

plaintiff failed to show cause for noncompliance, even after two

extensions); Cintron-Lorenzo v . Departmento de Asuntos del

Consumidor,

2 2 , 526 (1st Cir. 2002) (upholding

dismissal when court warned plaintiff and granted additional

time).

deposition questions. This was a different reply from the one he gave--refusing to answer them on principle--at his deposition. See Document n o . 2 7 , ¶ 4 ; Blaisdell Dep. 1 2 : 3-22, May 2 8 , 2010.

2 The court of appeals reviews a district court’s dismissal by

balancing “the trial court’s authority to impose such a sanction

against the obvious policy considerations that favor disposition

of the case on the merits.” Torres-Alamo,

(quoting Batiz Chamorro v . Puerto Rican Cars, Inc.,

, 4

(1st Cir. 2002)). In balancing these interests, the court

“give[s] weight to the substantive elements of the sanction,

including the severity of the party’s violation, mitigating

excises, and repetition of the violations, as well as procedural

elements such as notice and the opportunity to be heard.”

(citing Benitez-Garcia v . Gonzales-Vega,

, 5 (1st Cir.

2006)).

II. BACKGROUND

On November 9, 2004, the plaintiff’s van was parked in front

of his driveway with a board wedged behind the driver’s side tire

as a makeshift chock. (Compl. ¶ 4.) The defendants, the City of

Rochester, New Hampshire and the Rochester Police Department,

contend that the van was not sufficiently secured and was in

danger of rolling into traffic. The City towed the van and took

pictures of the outside and inside pursuant to a search incident.

(Answer ¶ 23.) According to the plaintiff, the temperature was

below freezing and the cold air destroyed tropical plants inside

3 the van, which were destined for a greenhouse to spend the

winter. (Compl. ¶¶ 2 , 12.)

In a civil complaint filed in 2007, the plaintiff alleged

that the defendants unlawfully seized, searched, and towed his

van and “general damages to Blaisdell’s civil rights.” (Compl.

¶ 25.)

A. Pretrial conference missed

After the initial removal motions, the court set a

preliminary pretrial conference date and a discovery plan

deadline. Fed. R. Civ. P. 2 6 . The plaintiff, however, did not

attend the pretrial conference despite the court’s clear

directions that it would not be cancelled and that both he and

the defendants’ counsel were required to attend. (Document n o .

8.) Although the defendants filed a timely proposed discovery

plan and incorporated the plaintiff’s changes where possible,

defense counsel was also unable to reach the plaintiff, a

consistently recurring problem, to discuss the discovery plan.

(Document n o . 7 , 1.)

The court ordered a show cause hearing why plaintiff should

not pay costs and fees for defendants’ appearance at the pretrial

conference. The plaintiff “moved to strike” the court’s

“consideration” of fees, explaining that he was ill on February

19th and did not have a telephone. (Document n o . 1 0 , ¶¶ 2 , 6.)

4 The court denied the plaintiff’s motion to strike, but

rescheduled the show cause hearing out of a concern that the

plaintiff might not receive the order in time. The court also

ordered that “in light of the plaintiff’s pro se status,” his

request, raised previously, to remand the case to state court

would be taken up at the rescheduled hearing. At the March 1 2 ,

2008 hearing, the court rescinded its order to pay costs and

fees. (See Minute Order for Show Cause Hearing dated 3/12/08.)

B. Deposition issues

Proceeding with the litigation, the defendants tried to

schedule the plaintiff’s deposition. They were unable to do s o ,

and requested extended discovery deadlines and a trial

continuance. (Document n o . 1 5 , ¶¶ 1 , 4.) Specifically, the

defendants’ counsel sent the plaintiff a Notice of Deposition for

December 3 0 , 2008. The plaintiff, however, did not appear, and

defense counsel was unable to contact him. (Document n o . 1 5 , ¶¶

2-3.) In January 2009, the defendants moved to extend deadlines

and continue trial due to the plaintiff’s claimed health-related

unavailability throughout November and most of December of 2008.

Id. Without objection from the plaintiff, the court granted the

motion and set a new trial date. (Endorsed Order dated 2/3/09 re

[15] Motion to Continue and Extend Deadlines.)

5 C. Pretrial statement issues

The plaintiff next failed to file his initial Pretrial

Statement due August 3 , 2009, and the court clerk had much

difficulty reaching him to address his failure to file. When the

defendants filed their Pretrial Statement, they noted that the

plaintiff was not reachable by telephone and the parties had not

agreed to the required statement of facts therein. (Document n o .

1 6 , 1.) The defendants then filed a second motion to extend

discovery deadlines and continue the trial based on the

plaintiff’s lack of response to counsel’s attempts to contact him

and his failure to file a Pretrial Statement. (Document n o . 1 7 ,

¶ 1.) The court again rescheduled the trial, this time for March

2 , 2010, with Pretrial Statements due on January 2 8 , 2010.

The Plaintiff did not file his Pretrial Statement on January

2 8 , 2010 as ordered by the court. On February 8 , 2010, court

staff unsuccessfully, repeatedly, tried to contact the plaintiff

regarding his Pretrial Statement, at that point a week overdue.

The court then ordered the plaintiff to file his Pretrial

Statement by February 1 6 , 2010 or face dismissal for lack of

prosecution. (Order dated 2/10/10.)

D. Continued deposition troubles

On February 1 6 , 2010, the plaintiff finally filed his

Pretrial Statement, (document n o . 1 8 . ) , along with a motion to

6 continue the trial until January 2011 due to health problems.

(Document n o . 1 9 , ¶ 1.) The court ordered the trial continued

until August 2010 and extended the discovery deadline until March

1 5 , 2010. The court further ordered the plaintiff to appear for

deposition on or before March 1 5 , 2010, and warned: “Failure to

cooperate in arrangements for, or to appear for, the deposition

will result in a dismissal of the action for failure to

prosecute.” (Endorsed Order dated 2/17/10 re [19] Motion to

Continue Trial.)

E. Plaintiff did not attend deposition

The plaintiff proved uncooperative in scheduling a

deposition and was not deposed pursuant to the court’s February

16th order. On February 2 3 , 2010, defense counsel properly sent

the plaintiff a Notice of Deposition requiring his attendance at

a deposition on March 1 1 , 2010. (Document n o . 2 1 , ¶ 2.) On

March 10th, defense counsel received a voicemail from the

plaintiff indicating that he had car trouble and a health issue

and was not sure he could come to the deposition. The plaintiff

asked to reschedule the deposition for March 12th or 15th and

indicated that he was aware of the March 15th deadline.

(Document n o . 2 1 , ¶ 4.) Defense counsel’s secretary called the

plaintiff five times to reschedule and received no answer.

7 (Document n o . 2 1 , ¶ 5.) Defense counsel then sent a new Notice

of Deposition by priority overnight mail to the plaintiff for a

March 12th deposition as requested in his voicemail.2 (Document

n o . 2 1 , ¶ 6.) Defense counsel’s secretary also tried to call

twice more on March 1 1 , 2010. (Document n o . 2 1 , ¶ 5.) Expecting

a deposition, the defendants arranged for a court reporter, who

appeared on March 11th and again on March 12th. The plaintiff

did not appear for his deposition on March 12th and was

unreachable by phone. (Document n o . 2 1 , ¶¶ 8 , 9.)

On March 16th, the defendants filed a motion to dismiss and

for costs and fees based on the plaintiff’s failure to appear for

deposition, despite the court’s order and defense counsel’s

attempts to accommodate him. (Document n o . 2 1 , ¶ 11.) On March

19th, defense counsel received a letter from the plaintiff, dated

March 16th, in which he proposed new deposition dates in April

2010 and explained that he did not attend the scheduled

depositions because of car and health problems. (Document n o .

2 2 , ¶ 2.)

The defendants take issue with the plaintiff’s excuses,

claiming that the plaintiff received the Notice of Deposition,

was able to communicate with defense counsel, as indicated by his

2 Federal Express confirmed that the notice was delivered at the plaintiff’s address on March 1 1 , 2010 at 2:35 p.m. (Document n o . 2 1 , ¶ 7.)

8 voicemail and letter, and could have promptly rescheduled without

causing such inconvenience and wasting resources. Id. at ¶ 3 .

F. Fees and costs ordered

In response, the court issued an order partially granting

the defendants’ motion to dismiss and for costs and fees, staying

the case until the plaintiff paid fees and costs pursuant to Fed.

R. Civ. P. 30(d)(2). (Document n o . 24.) The court ordered that

the plaintiff would avoid dismissal:

only upon certification by [defendants’] counsel that the plaintiff has appeared at her office for deposition, has been deposed, and that full payment of costs and fees has been made in satisfaction of this order. If such certification has not been received within 60 days of this order, the case will be dismissed for lack of prosecution.

Id. The plaintiff filed an objection to the motion to dismiss--

although after the April 8th order--discussing his version of the

events of March 10th through 12th and explaining his health and

financial constraints. (Document n o . 2 6 , ¶¶ 2 , 6, 13.) The

court maintained the stay, but reduced the fees and costs owed by

plaintiff from $1,187.42 to $847.42. (Endorsed Order dated

04/16/10 re [25] Bill of Costs.)

9 G. Second show cause hearing ordered

On June 1 4 , 2010, the defendants requested the relief

contemplated by the April 8th order--dismissal of the case--on

the grounds that the plaintiff had failed to pay court-ordered

costs and fees and had shown a “questionable degree” of

cooperation when he was finally deposed on May 2 8 , 2010.

(Document n o . 2 7 , ¶ 6.)

Although the plaintiff did appear for a deposition on May

2 8 , 2010, it was difficult on several levels. (See Document n o .

2 7 , ¶¶ 3-4.) For example, on the day of the deposition--already

once rescheduled--defense counsel received a message from the

plaintiff that he had to go to the emergency room, but would

appear at 1:30 p.m. for the 1:00 p.m. scheduled deposition. He

arrived later than that, and the deposition did not begin until

after 3 p.m. Id. The plaintiff declined to answer questions

important to the litigation and to his compliance with the April

8th order, such a s : (1) the name of the greenhouse owner and the

address of the greenhouse in question3, (2) medications used by

the plaintiff which might interfere with his deposition, and (3)

his source of income. Id. at ¶ 4 .

3 At the show cause hearing, the plaintiff told the court that he did not know the name of the greenhouse owner nor the address of the greenhouse, or even if the greenhouse was still standing.

10 The court ordered the plaintiff to appear on July 1 5 , 2010

to show cause why the case should not be dismissed for lack of

prosecution per the April 8th order. The plaintiff filed a

general objection to defendants’ motion to dismiss, outlining his

health problems and the unreliable state of his car. (Document

n o . 2 8 , ¶¶ 1-2.) He contended that he did not receive notice of

the deposition and did not receive a transcript of the deposition

before the defendants filed their notice in response to the April

8th order. He also stated that he was financially unable to pay

costs and fees, that he was at an economic disadvantage in the

proceedings, and the questions he refused to answer were not

pertinent to the litigation. (Document n o . 2 9 , ¶¶ 1 2 , 2 2 , 14-

15.) The defendants provided the court with UPS tracking

receipts documenting notice of the deposition, and a transcript

of the deposition was delivered to the address given in the

plaintiff’s deposition. (Document n o . 3 0 , ¶¶ 1-2.) At the show

cause hearing, the plaintiff claimed that “someone” was stealing

his mail.

At the show cause hearing, the court joined the parties at

one of the counsel tables in the well of the courtroom in order

to accommodate the plaintiff, who said he had difficultly

hearing. The plaintiff discussed his financial limitations and

answered some questions about the greenhouse with information

inconsistent with his deposition answers and pre-hearing filings.

11 III. ANALYSIS

“A district court, as part if its inherent power to manage

its own docket, may dismiss a case for any of the reasons

prescribed in Federal Rule of Civil Procedure 41(b), including

failure of the plaintiff to comply with any order of the court.”

Torres-Alamo,

(citing Cintron-Lorsenzo,

at 5 2 6 ) ; see also Young v . Gordon,

6 , 81 (1st

Cir. 2003) (upholding dismissal where offender, who was

forewarned of the consequences for noncompliance with a

deposition order, had a “documented history of disregarding the

court’s orders”); Tower Ventures, Inc. v . City of Westfield,

3 , 46 (1st Cir. 2002) (affirming dismissal with prejudice

for noncompliance with scheduling orders without good cause).

It is “well established in this circuit that where a

noncompliant litigant has manifested a disregard for orders of

the court and been suitably forewarned of the consequences of

continued intransigence, a trial judge need not first exhaust

milder sanctions before resorting to dismissal.” Torres-Alamo,

(quoting HGM Prop. Investors, Inc. v . Parque

Indus. Rio Canas, Inc.,

0 8 , 918 (1st Cir. 1988)).

Here, the court imposed lesser sanctions, including assessments

of costs and fees, even rescinding one order to pay costs and

fees. The court also repeatedly warned the plaintiff that the

consequence of continued noncompliance would be dismissal.

12 Violation of a scheduling order may be excused if the

offender presents good cause for the failure to comply. Tower

Ventures, Inc.,

-47 (citing Robson v . Hallenbeck,

, 3 (1st Cir. 1996)). “A finding of bad faith,”

however, “is not a condition precedent to imposing a sanction of

dismissal.” Young, 330 F.3d at 8 2 . On more than one occasion

the plaintiff was afforded relief from sanctions when he offered

his health and car troubles as excuses. But his continued

noncompliance, lack of factual support for some excuses, and

failure to timely explain himself regarding the April 8th order

constitute ample grounds for the court to make good on its

promised sanction of dismissal.

This is not a case of a severe sanction imposed for a single

act of noncompliance. See Esposito v . Home Depot U.S.A., Inc.

2 , 80 (1st Cir. 2009); Benitez-Garcia, 468 F.3d at 5

(reversing discovery sanction, which amounted to dismissal, when

plaintiff missed one deadline). Here, the plaintiff had a

documented history of serial noncompliance. On multiple

occasions, the court showed a willingness to accommodate him. At

a final, absolute-last-chance show cause hearing, the plaintiff

was unable to satisfactorily explain his noncompliance or assure

the court of future compliance.

13 Addressing the possibility of greater leniency for a pro se

plaintiff, the First Circuit has said there are “some settings in

which such leniency is appropriate.” See Cintron-Lorenzo,

(acknowledging the possibility of leniency toward

a pro se plaintiff, but not applying it when the court issued

previous warnings and the pro se plaintiff was an attorney).

However, pro se litigants in civil cases are not entitled to

extra “procedural swaddling” and must still comply with

procedural rules and substantive law. Eagle Eye Fishing Corp. v .

U.S. Dept. of Commerce,

(1st Cir. 1994)

(reviewing supporting cases).

Here, the court explicitly warned the plaintiff that the

case would be dismissed for failure to comply with scheduling

orders. C f . Young, 330 F.3d at 8 3 . At the final show cause

hearing, the plaintiff gave no assurance that there would not be

continued failure to comply with court orders as could reasonably

have been expected given his “documented history of disregarding

the court’s orders.” Id. at 8 1 . Rather, the plaintiff implied

he would be unable to comply with the April 8 , 2010 order either

financially or by fully answering the defendants’ deposition

questions.

Based on the plaintiff’s failure to prosecute this

litigation, and to comply with court orders regarding discovery

14 and discovery sanctions, even after additional time and the

opportunity to present excuses, this case is dismissed. Fed. R.

Civ. P. 37(b)(2)(C); Fed. R. Civ. P. 41(b).

IV. CONCLUSION

According to the April 8 , 2010 order and for the above

stated reasons, the case is DISMISSED. The clerk shall close the

case.

SO ORDERED.

Joseph N . Laplante ___________ United States District Judge

Dated: August 1 0 , 2010

cc: George Blaisdell, pro se Catherine M . Costanzo, Esq

15