The opinion of the court was delivered by: Matsumoto, United States Magistrate Judge
Upon the consent of all parties, pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, the undersigned will conduct all further proceeding in this action, including the trial, and order the entry of a final judgment. (Doc. No. 35, Consent to Jurisdiction by a United States Magistrate Judge, filed on Sept. 28, 2005.)
Presently before the Court is an unopposed motion by defendants Chaduhry, Gear Trans Corp. ("Gear") and Wolvek (collectively, "defendants") to dismiss the instant action for plaintiff's failure to prosecute, and for costs. (See Doc. Nos. 55-56, Letters from Counsel for Chaduhry and Gear, Marjorie E. Bornes, Esq., dated July 12, and July 18, 2006, respectively, and Doc. No. 57, Letter from Counsel for the Wolvek defendants, John W. Kondulis, Esq., dated July 24, 2006.) Alternatively, defendants request that plaintiff be precluded from offering evidence at trial due to plaintiff's failure to participate in the drafting of the joint pretrial order, as so directed by the Court by order dated May 19, 2006. (See Doc. No. 53, Defendants' Joint Pre-Trial Order filed on June 30, 2006 ("June 30 JPO"), at 1.)
For the reasons set forth below, defendants' motions to dismiss and for preclusion are denied without prejudice. Defendants' application for costs is granted to the extent set forth below.
The Court held a status conference on May 19, 2006, at which counsel for all parties were present, including Catherine M. Conrad, Esq., counsel for plaintiff. At that conference, the Court, having recently denied the Wolvek defendants' motion for summary judgment (see doc. no. 44, Memorandum and Order), and considering the schedules of all counsel, set a trial date in this matter for August 21, 2006. In anticipation of the trial, the Court, inter alia, ordered that the parties participate in the drafting of a joint pretrial order ("JPO"), in accordance with the undersigned's motion practices. To that end, the Court ordered that: (i) plaintiff provide his proposed pretrial order to defendants by June 2, 2006; (ii) defendants respond to plaintiff's proposed pretrial order by June 23, 2006; and (iii) the final JPO be filed by June 30, 2006. In addition, the Court ordered all parties to appear for a final pretrial conference on July 13, 2006 at 1:00 p.m. (See Minute Entry for Status Conference held on May 19, 2006.)
By letter dated June 16, 2006, two weeks after plaintiff's proposed pretrial order was to be served on defendants, counsel for the Wolvek defendants wrote to the Court to advise that he had not received plaintiff's proposed pretrial order. (Doc. No. 46, Letter from John W. Kondulis, Esq. dated June 16, 2006.) Counsel for the Wolvek defendants indicated that he had "left a couple of voice mail messages with plaintiff's counsel . . . and . . . received no response[,]" and that he had checked with co-defendant's counsel the morning of June 15, 2006 and "confirmed that they had not received any draft pretrial order from the plaintiff." (Id. at 1.) The Wolvek defendants' counsel's June 15 letter did not request any relief; rather, counsel "felt that [the Court] should be made aware of the status of the pretrial order." Plaintiff did not submit a response to the Wolveks's counsel's letter.
In response and in view of the upcoming date for the filing of the final pretrial order, by order dated June 17, 2006, the Court reiterated its previous order that the final JPO was expected to be filed by June 30, 2006. The order stated:
The Court expects the final pretrial order to be filed on or before 6/30/06, as previously ordered. The Court will not grant an extension of this deadline absent compelling reasons. The parties shall ensure that the final pretrial order is timely filed. (Order dated June 17, 2006.)
The Court did not hear from the parties until June 30, 2006, when defendants filed their proposed pretrial order (doc. no. 53). In that submission, defendants indicated that "[p]laintiff has never provided any information for the pre-trial order and no contentions for plaintiff are included in this order." (June 30 JPO at 1.) As a consequence of plaintiff's failure to participate in the drafting of the JPO, defendants requested that "plaintiff should be precluded from offering evidence since plaintiff has not provided the information required by the Court, but, in the event that plaintiff is permitted to proceed, defendants reserve all rights and objections available under the Federal Rules of Civil Procedure, Federal Rules of Evidence and Local Rules." (Id.)
In view of defendants' application to preclude plaintiff from offering evidence at trial, the Court ordered plaintiff to show cause why he failed to participate in the drafting of the JPO. Specifically, on July 6, 2006, the Court ordered that:
On or before 7/11/06, plaintiff shall show cause, in writing, why (i) defendants' request that plaintiff be precluded from offering evidence at trial should not be granted in light of plaintiff's failure to comply with this Court's orders requiring plaintiff's participation in the drafting of the joint pretrial order; and (ii) why plaintiff's case should not be dismissed for failure to prosecute in view of his failure to comply with court orders.
In a belated response to the Court's show cause order, by letter dated July 11 and filed on July 12, 2006, plaintiff represented, through his counsel, Catherine M. Conrad, Esq., that "[p]laintiff has adopted the proposed Pre-Trial Order of the Co-Defendants Wolveks and therefore did not submit an additional Pre-Trial Order." (Doc. No. 56, Letter from Catherine Conrad, Esq. filed on July 12, 2006 ("Plaintiff's July 12 letter").) Plaintiff's July 12 letter failed to respond to the portion of the show cause order requiring plaintiff to explain why he should not be precluded from offering evidence at trial and why his case should not be dismissed for failure to prosecute. Based on that letter, counsel for defendants Chauduhry and Gear stated that "it is clear that [plaintiff] does not intend to produce any evidence in this case and is not prosecuting it and the action must, therefore, be dismissed." (Doc. No. 55, Letter from Marjorie Bornes, Esq. dated July 12, 2006.)
Per its May 19 order, the Court held a final pretrial conference on July 13 at 1:00 p.m. (See Minute Entry for Final Pretrial Conference held on July 13, 2006.*fn1 ) As reflected in the Court's Minute Entry for that conference, plaintiff's counsel failed to appear in person, as ordered. Defendants' counsel Marjorie Bornes, Esq. and John Kondulis, Esq., appeared promptly as scheduled. After attempting for nearly thirty minutes, the Court reached plaintiff's counsel on her cellular telephone. Plaintiff's counsel stated that she was on trial in another matter and on a lunch break, although counsel did not explain why she failed to notify her adversaries and the Court of her trial and seek a timely adjournment of the final pretrial conference. The Court permitted plaintiff's counsel to participate by telephone ...