DATE: JULY 13, 1997
CASE NO: 97-WPC-1

In the Matter of

Joseph Tracanna,
    Complainant,

    v.

Arctic Slope Inspection Service
(Asis),
    Respondent.

   The above entitled matter was scheduled for trial Wednesday, July 16, 1997, in Anchorage, Alaska. On June 24, 1997 Respondent filed a motion to dismiss the above entitled matter with prejudice on the grounds that Complainant has failed and/or refused to comply with discovery requests, has failed to make himself available for scheduled depositions, and has failed to comply with orders of the undersigned previously issued.

   Upon good cause shown in the aforesaid motion and attached documentation, Complainant was ordered, on June 25, 1997, to show cause in writing addressed to the undersigned on or before July 3, 1997, as to why the motion to dismiss the matter herein with prejudice, should not be granted . In a letter dated July 2, 1997 and received by the undersigned on July 3, 1997 Complainant responded to the Order to Show Cause of June 25, 1997 in an articulate and sympathetic manner. In essence Complainant expresses his frustration with the procedural requirements required in matters such as this and his unpleasant experience of representing himself without assistance of legal counsel. He acknowledges that he proceeded without counsel as a matter of choice which he now considers a mistake. Although I appreciate Complainant's sentiments expressed in his letter, the fact remains that the procedural rules for pretrial and discovery in this matter apply equally to both parties herein and Complainant is not entitled to an exemption merely because he elected to represent himself without counsel. The Complainant has not shown good cause or any cause as to why the motion to dismiss should not be granted.

   Four factors have been considered in the matter herein: (1) Complainant's degree of personal responsibility; (2) the amount of prejudice to the Respondent; (3) the presence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal. Malpass et al. v. General Electric Co., 85- ERA-38, 85-ERA-39 (Secretary of Labor March 1, 1994). Citing Herbert v. Saffell, 877 F.2d 267 (4th Cir. 1989).

   On May 22, 1997 Complainant was ordered to show cause as to why Respondent's requests for admission should not be admitted, and ordered to file responses to Respondent's Interrogatories and requests for production dated March 28, 1997 and given until June 6, 1997 to respond and comply. Complainant did not respond or comply. On June 10, 1997 an order was issued by the undersigned that all Respondent's requests for admission were deemed admitted. On June 12, 1997 Respondent filed a motion for sanctions for Complainant's failure to comply with the May 22, 1997 order of the undersigned compelling Complainant to file discovery responses, and requested that the matter be dismissed. On June 13, 1997 sanctions were imposed by the undersigned but the matter was not dismissed. On June 19, 1997 Complainant filed a letter which was treated as a motion for reconsideration of the Order for Sanctions but the letter did not contain any information or show good cause warranting any change in the Order for Sanctions issued June 13, 1997, and the motion for reconsideration was denied.

   Complainant's deposition was scheduled for June 16, 1997 which was rescheduled for Complainant's convenience and at his request to June 19, 1997. One hour before the deposition, Complainant communicated to counsel for Respondent that he would not make himself available for the deposition.

   Complainant has demonstrated a pattern of refusing to cooperate in the discovery process, refusing to comply with any lawful discovery, and refusal to comply with discovery orders of the undersigned. Such dilatory behavior and non-compliance has prejudiced Respondent and its counsel is unable to prepare for trial. It has interfered and precluded any compliance with the Pre-trial order issued by the undersigned for the orderly scheduling of the case for trial. Complainant is personally responsible for all of the foregoing as he represents himself and from correspondence and other documentation appears to be an intelligent, literate, and capable person with the capacity to represent himself. Finally, sanctions less severe than dismissal were previously imposed despite the Respondent's prior request for dismissal and have been ineffective.

   It is therefore ordered that the above entitled matter is dismissed with prejudice. It is further ordered that the trial scheduled for July 16, 1997 is canceled.

.

       HENRY B. LASKY
      Administrative Law Judge

Dated: July 3, 1997

HBL