On June 28, 1989 a telephone conference was held with Plaintiff,
attorney for Defendant, and this Administrative Law Judge,
[Page 3]
during which Plaintiff requested an additional stay of proceedings
for 60 days due to medical reasons. He was instructed to
file a written request by July 13, 1989, with medical documentation
regarding his disability. On July 17, 1989, the Plaintiff
filed a request for stay of proceedings for sixty days. With his
motion he filed a letter from T. A. Biller, a counseling psychologist,
stating that the Plaintiff would likely be able to handle a
court appearance more successfully in 2 or 3 months. He also
filed a portion of an examination note, dated March 30, 1989,
from Dr. McGraw regarding a reaction to gold injections. On
August 1, 1989, an Order was issued staying further proceedings
until September 15, 1989.
On October 11, 1989 an Order was issued directing the Plaintiff
to file a written response stating whether he was prepared
to go forward with the two consolidated cases. The Order stated
"... if the Plaintiff feels that he is unable to proceed with his
hearing due to medical reasons he must file a written report by a
licensed medical doctor giving the state of his health and listing
the reason(s) that he is unable to attend a hearing. The
report must be based on a current medical examination, that is,
an examination conducted within thirty days of its filing in
these proceedings. If no response is filed by the Respondent
[should have read Plaintiff], the cases will be scheduled for
hearing."
The Plaintiff filed a response on November 22, 1989 stating
that he felt unable to go forward with a hearing on the two
cases. He also filed a "Attending Physician's Statement of
Disability" dated October 25, 1989 signed by Dr. Donaldson and a
note dated November 14, 1989 from Dr. Donaldson stating that he
was in the process of gaining approval for the (Plaintiff) to
enter the Rehabilitation and Pain Management Services Program at
East Ridge Community Hospital.
On December 7, 1989, an Order was issued stating that Plaintiff's
response was not in compliance with the previous Order
requiring a current (within 30 days) doctor's examination and did
not give the reasons that he was unable to go to hearing nor
state when he would be available to proceed to hearing. The two
cases were scheduled for hearing on April 2, 1990.
On December 18, 1989, the Plaintiff filed a Motion for
Reconsideration of the Order dated December 7, 1989, scheduling
[Page 4]
the case for hearing on April 2, 1990. With his motion he filed
a letter from Johnna L. Eberle, RN, at Memorial Hospital stating
that Mr. Billings had undergone Coronary Bypass Surgery on
November 30, 1989 and would be hospitalized for approximately 10
to 14 days. On January 27, 1990, the Plaintiff filed a Motion
for Continuance stating that he had suffered a heart attack on
November 22, 1989 and underwent Bypass Surgery. He submitted a
letter from Dr. Berglund stating that he [Billings] could not
proceed with legal hearings until his clinical situation allowed.
On February 8, 1990, this Administrative Law Judge wrote to Dr.
Berglund asking for a report on Mr. Billings' medical condition,
his prognosis and when Dr. BergLund felt that the Plaintiff's
condition would allow him to go forward with his hearing. On
February 20, 1990, Dr. Berglund replied that "He appears to be
gaining strength, but I feel it would be in his best interest to
be re-evaluated in two months before subjecting him to the
stresses of legal proceedings." On March 6, 1990, an Order was
issued canceling the hearing scheduled for April 2, 1990, with a
new hearing date to be scheduled after Plaintiff's re-evaluation
which was to take place on or about April 20, 1990.
On March 9, 1990, the Plaintiff filed a request that the
cases be separated and that Judge Hillyard be disqualified from
hearing the cases.
A telephone conference was held on June 8, 1990 with the
Plaintiff, attorney for the Defendant, and the Administrative Law
Judge, at which time the Plaintiff stated that he was ready to go
forward with his hearings. A hearing date was agreed upon with
the parties and the hearings were scheduled for August 13, 1990
in Knoxville, Tennessee, with pretrial submissions to be filed by
July 23, 1990. The Plaintiff expressed concern that a consolidated
hearing of all five complaints would be too lengthy and
complicated. The Administrative Law Judge advised him that the
cases would be severed for the purpose of filing of pleadings,
however, after the prehearing submissions were filed, the cases
may be consolidated in order to expedite the hearing process and
lessen the expenses to all parties. The parties were told that a
decision on whether to consolidate one or more of the cases for
hearing would be made after review of the prehearing submissions
and would depend on the similarity of issues and duplicity of
witnesses. Plaintiff was also advised that his motion for
disqualification of Judge Hillyard was denied.
[Page 5]
On June 12, 1990 several Orders were issued. A Notice of
Hearing and Prehearing order was issued scheduling the hearing to
commence on August 13, 1990 and requiring the parties to file a
list of witnesses with summary of testimony, a statement of the
issues, a list of exhibits, preliminary motions and an estimate
as to the length of time required for hearing. The order provided
a notice, "That failure to timely comply with this prehearing
order, without good cause shown, may result in the dismissal
of the proceeding or the imposition of other appropriate
sanctions against the offending party." An Order was issued severing
the five cases for the purpose of the filing of motions and
pretrial submissions. This Order provided that after review of
the pretrial submissions of the parties, a determination would be
made on whether to consolidate one or more of the cases for
hearing. Such a determination was to be made after review of the
list of issues, witnesses and exhibits. Other Orders were issued
denying the Plaintiff's Motion to Recuse and lifting the Stay of
Proceedings.
On July 18, 1990, the Defendant filed a motion to extend the
time for the filing of its pretrial submission until July 30,
1990. This motion was granted by Order dated July 19, 1990.
On July 20, 1990, the Plaintiff filed a Motion requesting
that the five cases be separated for hearing and requested a time
extension for the filing of his pretrial submission. Plaintiff
stated that the request for information in all five cases was too
overwhelming. He submitted a letter from Dr. Berglund stating
that "...He [Plaintiff] would benefit from having his trials
staged in single events rather than all five at the same time
since it is unlikely that he would be able to handle the stress
level." Plaintiff wrote on July 25, 1990, requesting that only
one particular case be identified for hearing.
On July 30, 1990, the Defendant filed its prehearing
submission. The Defendant estimated that a hearing on all five
complaints could be completed in one to one and one-half days.
On July 31, 1990, a telephone conference was held with
Plaintiff, attorney for the Defendant and this Administrative Law
Judge. The purpose of the conference was to discuss the prehearing
submissions and determine which cases could actually be
consolidated for hearing after reviewing the prehearing
submissions and the similarity of issues and witnesses. Mr. Billings
[Page 6]
stated that he had made no attempt to obtain the information
necessary for the prehearing submission until the week of July
23rd, the date that the prehearing submission was due. Plaintiff
stated that he would like to continue the cases for six months
and then handle them on a one case at a time basis. The Defendant
stated that the issues in all five cases, other than 90-ERA-2,
were related and should be tried together. Because the Plaintiff
was unprepared to discuss the hearings, the conference was concluded
with no further discussion or decisions.
On August 2, 1990, an Order was issued canceling the hearing
because Plaintiff failed to file prehearing submissions and was
not prepared to go forward with the hearing. By letter filed
August 9, 1990, the Plaintiff requested the status of his cases
and said that he felt he could participate in one case at a time.
On August 9, 1990, an Order was issued extending the time
for filing of the Plaintiff's prehearing submission until
September 14, 1990. This Order provided a notice, "Failure to
timely comply with this Order without good cause will result in
the DISMISSAL of the proceeding or the imposition of other
appropriate sanctions. " The Plaintiff has not filed any response to
this Order. A second Order was issued on August 9, 1990, denying
the Plaintiff's motion to separate. This order again advised the
Plaintiff that no determination had been made as to which cases,
if any to consolidate for hearing but that determination was to
be made after reviewing the list of issues and witnesses to be
furnished in the prehearing submissions of the parties. This
order stated that the cases had already been severed by order
issued on June 12, 1990. Therefore, the motion to separate was
denied as being moot.
The Plaintiff wrote on September 13, 1990, stating that he
was able to compile the evidence and witness list for one hearing
at a time. Plaintiff wrote again on September 21, 1990, requesting
that the cases be separated and that one be selected for
hearing. The Plaintiff has never filed a response to the pretrial
order.
DISCUSSION AND APPLICABLE LAW
Twenty-nine CFR section 18.6 provides in pertinent part:
[Page 7]
(d) (2) If a party ... fails to comply with... any other
order of the administrative law judge, the administrative
law judge, for the purpose of permitting
resolution of the relevant issues and disposition of
the proceeding without unnecessary delay despite such
failure, may take such action in regard thereto as is
just, including but not limited to the following:
* * *
(v) Rule that ... a decision of the proceeding be
rendered against the non-complying party.
Twenty-nine CFR section 18.29 provides that the administrative
law judge shall have all powers necessary to the conduct of
fair and impartial hearings, including:
(6) take any action authorized by the Administrative
Procedure Act;
* * *
(8) where applicable, take any appropriate action
authorized by the Rules of Civil Procedure for the
United States District Courts issued from time to
time and amended pursuant to 28 U.S.C. 2072; and
(9) do all other things necessary to enable him or
her to discharge the duties of the office.
A trial judge is allowed considerable discretion to dismiss
an action for want of prosecution. Tinkoff v. Jarecki , 208 F.2d
861 (1953, CA7 Ill); Locascio v. Teletype Corp ., 694 F. 2d 497
(7th Cir. 1983). These rules reflect a court's inherent authority
to control its own docket by way of dismissal of actions in order
to manage the orderly and expeditious disposition of all cases.
An Order of Dismissal sua sponte under Rule 41(b), Fed.R.Civ.P.,
may be entered by the adjudication officer. Link v. Wabash R.
Co. , 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962).
It is clear that the district court does have the power
under Rule 41(b), Fed.R.Civ.P., to enter a sua sponte order of
dismissal. Carter v. City of Memphis, Tennessee , 636 F.2d 139
(6th Cir. 1980). The sanction of dismissal is appropriate only
if the attorney's dilatory actions amounted to failure to
prosecute and no alternative sanction would protect the integrity of
pretrial procedures. J. F. Edwards Const. Co. v. Anderson Safeway
Guard Rail Corp. , 542 F.2d 1318 (7th Cir. 1976) (per curiam). As
the Seventh Circuit has stated, "the key is a failure to prosecute,
whether styled as a failure to appear at a pre-trial conference
[Page 8]
failure to file a pre-trial statement, failure to prepare
for conference, or failure to comply with the pre-trial order."
Id . at 1323.
In the instant case, the Plaintiff is representing himself,
and any failure to comply with pretrial orders are directly
attributable to and due solely to the neglect of the Plaintiff.
A review of the facts in this case show that the Plaintiff
consistently failed to comply with Orders of this court. Initially,
delays were granted at Plaintiff's request due to his health
problems. Proceedings were continued and/or stayed pending
improvement of the Plaintiff's health. For these delays the
Plaintiff was not penalized. However, even during this period
the Plaintiff demonstrated a reluctance, if not outright refusal,
to comply with the court's Orders. The Plaintiff failed to
comply with an Order directing him to file a medical report
giving his prognosis and an estimate as to when he would be able
to proceed with hearing. The Administrative Law Judge then
personally wrote to the doctor to get the necessary information.
The Plaintiff, during the telephone conference of June 8,
1990, advised that he was able to proceed with the hearings on
his complaints. A date for the hearing was agreed upon with all
parties present. A date was also discussed and agreed upon for
the prehearing submissions. Shortly thereafter, on June 12,
1990, a Notice of Hearing and Prehearing Order was issued. Since
that time, the Plaintiff has failed and refused to comply with
any Orders of this court.
A telephone conference was conducted on July 31, 1990. The
purpose of the conference was to discuss and schedule hearings on
the cases scheduled to commence on August 13, 1990. The determination
on which cases, if any, were to be consolidated for
hearing was to be made after the parties had filed their pretrial
submission containing the witness list and list of issues. The
Defendant TVA stated in its pretrial submission and in telephone
conferences that the issues were intertwined and the different
cases would require the same witnesses. TVA estimated that all
five cases could be heard in one to one and one-half days. The
Plaintiff did not file a pretrial submission. In fact, the
Plaintiff admitted during telephone conference that he had made
no attempt to comply with the pretrial order. He said that he
made no attempt to gather the information necessary for compliance
until the week of July 23rd and even then gave no indication
[Page 9]
of what, if any, effort he had made for compliance. The scheduled
hearings were canceled and Plaintiff was given an extension
until September 14, 1990, for filing his pretrial submission. To
date, the Plaintiff has filed no response to the pretrial order.
Plaintiff states that he is unable to handle five cases at
one time. He feels the stress of working these five cases is too
much for him. He submitted a letter from Dr. Robert K. Berglund,
dated July 11, 1990 in which Dr. Berglund states:
Mr. Douglas Billings is now eight months post-bypass
grafting, but still has occasional chest discomfort
during periods of emotional upset and heavy exertion
for which he remains on medical treatment. He would
benefit from having his trials staged in single
events rather than all five at the same time, since
it is unlikely that he would be able to handle the
stress level ....
Depending on the list of witnesses and issues which were to
be submitted by the Plaintiff in his pretrial submission, one or
more of the cases may have been heard separately. However, the
Plaintiff refused to file any response to the pretrial order and,
in effect, has written that he has no intention of complying with
the pretrial order. He wrote that he intends to comply with Dr.
Berglund' s recommendation. Dr. Berglund had no knowledge that
all cases could possibly be heard in one to one and one-half days
as estimated by the Defendant.
The facts show that the complaint was filed on January 11,
1989. A hearing notice was issued on April 26, 1989, and the
hearing later continued at the request of the Plaintiff until his
health improved. On June 8, 1990, the Plaintiff advised that his
health had improved to the point that he could proceed with
formal hearings on his cases. At that time, the cases were
severed but were scheduled for hearing at the same time pending
filing of the prehearing submissions by the parties. The Plaintiff
was advised that a decision on which cases, if any, to
consolidate for hearing would be made after review of the issues
and witnesses as listed by the parties in their pretrial
submissions. He was made aware of this on at least six occasions,
twice orally, during telephone conferences of June 8, 1990 and
July 31, 1990 and four times in writing, by memorandum of
[Page 10]
telephone conferences dated June 12, 1990 and August 2, 1990 and by
Orders dated June 12, 1990 and August 9, 1990. Plaintiff waited
until shortly before the scheduled trial date before advising the
court that he was unprepared to go forward. This was not in
response to a written notice but in response to a telephone
conference initiated by the Administrative Law Judge. It is to
be noted that all of the numerous telephone conferences conducted
during these proceedings were initiated by the Administrative Law
Judge and were held with the Plaintiff, attorney for the Defendant
and this Administrative Law Judge. Plaintiff was advised by
notices issued with orders dated February 3, 1989, June 12, 1990,
and August 9, 1990, that failure to comply could result in
dismissal of his complaint. The Plaintiff has still made no attempt
to comply with the Pretrial Order. I find that the action or
inaction on the part of the Plaintiff evidences an unqualified
indifference to several court commitments which were continually
changed at the request of the Plaintiff. Plaintiff's contumacious
conduct warrants dismissal of the complaint for want of prosecution
pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure.
See Brazil v. Sambo's Restaurant, Inc. , 27 FR Serv2d 228,
Unpublished No. 77-2231 (7th Cir. 1978), Reh den Nov 13, 1978.
RECOMMENDED ORDER
It is, therefore,
ORDERED that the complaint of Douglas E. Billings is
hereby
DISMISSED WITH PREJUDICE .
ROBERT L. HILLYARD
Administrative Law Judge
[ENDNOTES]
1 This case was consolidated with four
other cases filed by the
Plaintiff. On June 21, 1989, an Order was issued consolidating
the instant case with 89-ERA-25, a complaint filed by Plaintiff
against TVA on January 23, 1989. On November 21, 1989, an Order
was issued consolidating the instant case with 90-ERA-2, a
complaint filed by Plaintiff against TVA on August 1, 1989. On
December 7, 1989, an Order was issued consolidating the instant
case with 90-ERA-8, a case filed by Plaintiff against TVA, on
October 14, 1989. On February 14, 1990, an Order was issued
consolidating the instant case with 90-ERA-18, a complaint filed
by Plaintiff on June 1, 1989.