The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
Memorandum-Decision and Order
Mary F. McKee sued Continental Casualty Company in New York Supreme Court seeking recovery under an insurance policy. See Not. of Removal, Dkt. No. 1. Citing diversity, Continental removed the action, and now seeks dismissal as a sanction for pretrial conduct that occurred before Magistrate Judge Randolph F. Treece. Id.; see also Continental Mot., Dkt. No. 11; FED. R. CIV. P. 37.*fn1 For the reasons that follow, the motion is denied. However, leave is granted to refile with Magistrate Judge Treece, upon his consent.*fn2
McKee filed her state action in November 2004, and was represented by Peter John Enzien, Esq., an attorney licensed to practice in New York, but not the Northern District. When Continental removed in December, it served the removal notice on Enzien. See Dkt. Nos. 1-3. Consistent with this district's local rules, the action was co-assigned to this court and Judge Treece, and referred to Judge Treece to manage pretrial litigation. See L.R. 16.1, 40.1, 72.2(a). The dual assignment system was also explained in General Order # 25 which was issued when the removal was filed, and subsequently served on Enzien. See Dkt. No. 4; see also N.D.N.Y. GENERAL ORDER # 25; L.R. 16.1.
Among other duties, Judge Treece was authorized to hold pretrial conferences, including a Rule 16 conference, and to enter scheduling orders, regulate discovery and explore settlement. See L.R. 16.1, 72.2(a); see also FED. R. CIV. P. 16. Accordingly, a Rule 16 conference was automatically scheduled by General Order #25, and held on March 17, 2005. See Dkt. No. 4, 6 & Jan. 25 Min. Entry. Prior to that conference, Continental's attorney and Enzien conferred as required by Rule 26(f) of the Federal Rules of Civil Procedure, and agreed that mandatory disclosures would be made by April 29, 2005. See Proposed Civil Case Management Plan, Dkt. No. 5; see also FED. R. CIV. P. 26(a)(1) (mandatory disclosures). Judge Treece conducted the Rule 16 conference, and issued an order requiring, inter alia, that discovery be completed by the following December. See Dkt. Nos. 6-7. Neither the conference minutes nor the order reflect that mandatory disclosure was addressed, but that topic is routinely discussed. See id.
During the three month interval from removal until the Rule 16 conference, Enzien never filed a notice of appearance as required by Local Rule 83.2. Apparently, his authority to represent McKee was not discussed at the Rule 16 conference. See Rule 16 Minutes, Dkt. No. 6.
After the conference, Continental served its mandatory disclosures on April 6, 2005. See Continental Not. Mot., Chen Aff. ("Chen Aff.") at ¶ 7 & Ex. B, Dkt. No. 11. McKee did not reciprocate. Chen Aff. at ¶ 8. Nonetheless, the parties sought to settle their dispute, but negotiations stalled in July because Enzien failed to communicate with Continental's attorney. Chen Aff. at ¶¶ 9-10; Continental Not. Mot., Exs. C-D, Dkt. No. 11. Furthermore, Continental warned McKee that the discovery deadline was approaching, and that by failing to serve her mandatory disclosures, she had delayed progress of the case which might result in a Continental motion to dismiss. Continental Not. Mot., Ex. C, Dkt. No. 11.
When McKee failed to respond to Continental's entreaties, Continental wrote Judge Treece, and explained the lack of progress as well as McKee's failure to abide by the federal and local rules and Judge Treece's scheduling order. See Chen Ltr. at 1, Dkt. No. 8. Continental sought permission "to make a motion to dismiss pursuant to the Federal Rule of Civil Procedure 41." Id. In response, Judge Treece issued a "text" order and an "electronic communications" order on July 26, 2005.*fn3 See Dkt. Nos. 9-10.
As Relevant, the Text Order Stated
... [T]he discovery deadline expires on December 30, 2005. The Defendant seeks permission to file a Motion to Dismiss for Plaintiff's inexplicable failure to provide mandatory discovery and to respond to discovery demands and an offer of settlement. Apparently, all communications with the Plaintiff have been nonexistent. Dkt. No. 8 Letter Request filed by Continental Casualty Company. Furthermore, the case docket does not reflect any appearance of the Plaintiff's attorney nor any compliance with electronic filing requirements. Based upon all of the foregoing, the Defendant is granted permission to serve and file a Motion pursuant to Federal Rules of Civil Procedure 37.
Text Order, Dkt. No. 9. Since Enzien is not an attorney admitted in the Northern District, he is not electronically registered, and the docket fails to reflect whether Judge Treece's text order was ever served on either him or McKee. See id.
Although Judge Treece's order recites a series of McKee failures related to pretrial management issues, Continental was apparently unclear as to whether it should file its sanctions motion with the district judge or the magistrate judge. See L. R. 7.1(b)(2) & (d); see also Continental Mot., Dkt. No. 11. In fact, L.R. 7.1(d)(6), citing Rule 37 of the Federal Rules of Civil ...