United States District Court, D. Massachusetts
TIMOTHY S. HILLMAN, DISTRICT JUDGE
Baez (“Baez” or “Plaintiff”) has
filed suit against Joanne Duggan, Jeffrey Notaro, and Paul
Silvestre, Jr., of the Clinton Police Department alleging
violation of his civil rights under 42 U.S.C. §1983. The
Plaintiff appeared for the initial scheduling conference
after which, on December 14, 2017, the Court issued a
Scheduling Order setting a status conference for March 2,
2018. The status conference was continued by the Court until
March 12, 2018; at that conference, an attorney made a
special appearance for Baez and informed the Court that he
expected to file an appearance for all purposes. The attorney
never filed an appearance for Baez and Baez failed to appear
at the next scheduled status conference which was held on
June 11, 2018. Thereafter, Baez filed a motion to appoint
counsel, which was denied. Baez appeared for the next status
conferences held on August 23, 2018 and September 14. 2018.
As set forth in more detail below and as discussed at the
latter status conference, Defendants have noticed Baez's
deposition on multiple occasions and he has failed to appear.
On December 12, 2018, Defendants filed Defendants' Motion
To Dismiss The Plaintiff's Complaint For Failure To
Comply With The Court's Order To Appear For His
Deposition And Failure To Prosecute (Docket No. 43). That
motion is denied, without prejudice.
Relating To Motion
April 4, 2018, counsel for the Defendants served a Notice of
Taking of Deposition on Baez to appear for his deposition on
May 28, 2018. On May 28, 2018, Baez failed to appear for his
deposition and did not attempt to contact counsel to
reschedule the same. On June 11, 2018, the Court held a
Status Conference. Counsel for the Defendants appeared via
teleconference; Baez failed to appear. In subsequent
correspondence sent directly to the Court, Baez stated that
he was currently incarcerated, but desired to pursue his
claims upon his release on August 14, 2018.
August 23, 2018, the Court held a Status Conference; Baez and
counsel for the Defendants were present. The Court determined
that an additional Status Conference was necessary so that
the Court could provide an interpreter for Baez. On September
14, 2018, the Status Conference was held and Baez was ordered
to appear for his deposition at the United States District
Court for the District of Massachusetts on October 12, 2018.
October 2, 2018, counsel served a Re-Notice of Taking of
Deposition of Baez. Baez was informed that due to a
scheduling conflict the counsel whom he'd previously
dealt with was unable to attend and therefore, Attorney
Bradford Louison would be taking his deposition at the United
States District Court for the District of Massachusetts on
November 14, 2018, that an interpreter would be provided,
that he should call the office to confirm that he will appear
and that the Defendants would move to dismiss his claims for
failure to prosecute if he failed to appear for his
deposition. Additionally, the office of counsel for the
Defendants attempted to contact Baez via telephone on October
10, 2018 and October 11, 2018 to relay this information to
him and the phone number did not appear to be in service.
November 14, 2018 at 10:00 a.m., Attorney Bradford Louison
appeared at the United States District Court for the District
of Massachusetts to take Baez's deposition as scheduled.
Attorney Louison waited until 10:40 am for Baez to appear.
Baez failed to appear, Attorney Louison went on the record to
stated that Baez had failed to appear for his deposition at
the at the United States District Court for the District of
Massachusetts as ordered by the Court.
summarized in Defendants' memorandum, Baez has failed on
multiple occasions to appear for his noticed deposition and
has failed to take any other action to move his case forward.
Baez is proceeding pro se, however, he is obligated to comply
with this Court's rules and procedures. See United
States v. Heller, 957 F.2d 26, 31 (1st Cir.
1992). Further, a litigant's pro se status does not
excuse his failure to comply with a scheduling order of the
court nor relieve that person from the consequences of such
failure. Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315
(1st Cir. 1998)(litigants have unflagging duty to
comply with clearly communicated case-management orders, and
this duty extends to litigants who proceed pro se).
failed to appear for his deposition in defiance of this
Court's order. As a result, Defendants seek to have this
action dismissed for failure to prosecute. Plaintiff has
submitted an opposition and two other submissions in which he
simply states that his rights have been violated and he
deserves his day in Court. More specifically, in these three
submissions, Baez essentially summarizes the substance of his
claims and asks that the Court find his civil rights were
violated. While Baez acknowledges the fact that he failed to
appear for a status conference, he offers no justification
for his absence. Additionally, he does not acknowledge his
failure to appear for his deposition, nor does he state that
he will do so in the future.
the circumstances, it is a close call as to whether due to
Plaintiff's actions (or inactions as the case may be),
his case should be dismissed. However, given that Plaintiff
has on multiple occasions appeared before the Court in
response to Court orders and has expressed that he intends to
prosecute his case, I will give him one last opportunity to
appear for his deposition and otherwise pursue his claims.
Defendants shall notice Plaintiff's deposition which
shall take place at the United States District Court, 595
Main Street, Worcester, MA at a date and time to be
designated by the Defendants. If Plaintiff fails to appear,
his case will be subject to dismissal and Defendants will
also be allowed to file for attorney's fees and costs
Motion To Dismiss The Plaintiff's Complaint For Failure
To Comply With The Court's Order To Appear For His
Deposition And Failure To Prosecute (Docket No. 43), is
denied without prejudice to renew
should Josue ...