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Kotsias v. CMC II, LLC

United States District Court, W.D. North Carolina, Asheville Division

August 8, 2017

RITA KOTSIAS, Plaintiff,



         THIS MATTER is before the Court to determine whether the dismissal of this action is to be with or without prejudice [See Minute Entry dated May 8, 2017]. Also pending before the Court are the Plaintiff's motions entitled “Motion to Vacate Court's Order Of 5.8.17 Denying Plaintiff's Request for a Continuance And then, Grant a Continuance” and “Motion to Vacate Court's Order Of 5.8.17 To Dismiss Plaintiff's Case On Grounds that Defendants Committed Fraud upon the Court.” [Docs. 110, 111].

         For the reasons stated below, the Plaintiff's Complaint is dismissed with prejudice and the Plaintiff's motions are denied.


         The Plaintiff, proceeding pro se, filed this action on October 23, 2015, against the Defendants asserting claims of discrimination pursuant to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. [Doc. 1]. The Plaintiff chose to participate in the Western District of North Carolina Pro Se Settlement Assistant Program (hereinafter “Pro Se Program”) and pursuant thereto, Plaintiff was appointed counsel for the limited purpose of assisting in a mediated settlement conference held on April 14, 2016, that resulted in an impasse. [Docs. 16, 18, 20]. Thereafter, on May 6, 2016, the parties filed their certification of initial attorney conference and discovery plan (hereinafter “CIAC”). [Doc. 21]. The Plaintiff asserted in the CIAC that the Defendants had engaged in criminal misconduct, obstruction of justice, racketeering, violated her Fourth, Fifth, and Fourteenth Amendment rights, and would perpetrate fraud upon the Court. [Id. at 3, 4].[1]

On May 10, 2016, the Court entered a Pretrial Order and Case Management Plan (hereinafter “Case Management Order”), setting this matter for trial during the May 8, 2017 civil trial term. [Doc. 22]. On October II, 2016, the Court amended the Case Management Order, extending certain deadlines to complete discovery and file motions; however, the matter remained set for trial during the May 8, 2017 civil term. [Doc. 58]. On March 8, 2017 the Court supplemented the Case Management Order setting forth requirements and deadlines related to the upcoming trial, such as the filing of evidentiary motions, the designation of the excerpts of deposition transcripts to be used at trial, the exchange of exhibits and exhibit lists, and the filing of trial briefs, proposed jury instructions and proposed issues. [Doc. 87]. The matter still remained set for trial during the May 8, 2017 civil term. [Id.].

         On March 24, 2017, the Court held a hearing on the Defendants' motions for summary judgment, which were denied. [See Minute Order dated March 24, 2017]. At the hearing, the Court reiterated that the matter was set for trial during the May 8, 2017 civil trial term and that the parties should prepare accordingly. [Doc. 94 at 43, 44]. The Court informed the Plaintiff of the challenges she faced in proceeding to trial pro se and strongly encouraged the Plaintiff to obtain counsel and to do so immediately. [Id. at 44, 45]. The Court, however, made clear to the Plaintiff that if an attorney made an appearance on her behalf on the eve of trial and requested a continuance, such request would be denied due to the long set trial date. The Plaintiff was also advised that it is the practice of this Court to set trial dates very far in advance so that all involved parties can plan accordingly, and therefore, continuances are granted only in extraordinary circumstances. [Id. at 50, 51].

         On April 5, 2017, the Court granted the Defendants' second motion for a Judicial Settlement Conference (hereinafter “JSC”) and set the JSC for April 24, 2017. [Docs. 88, 89].[2] The Court referred the matter to the Honorable David C. Keesler, United States Magistrate Judge, for the purpose of conducting the JSC. [Doc. 89]. On April 13, 2017, Judge Keesler, sua sponte, entered an order referring the matter to the Pro Se Program, and pursuant thereto, appointed counsel to Plaintiff for the limited purpose of assisting with the JSC. [Doc. 91]. On April 13, 2017, Plaintiff filed a motion entitled “Plaintiff's Motion for Alternative Hearing of Court Ordered Judicial Settlement Conference Due to Hardship.” [Doc. 95]. The next day, April 14, 2017, was the deadline set by the Case Management Order for the Plaintiff to file any designation of deposition excerpts for use at trial and any motions in limine or other evidentiary motions regarding trial. [See Docs. 58, 87]. The Plaintiff, however, failed to make any such filings by that deadline despite having filed the motion regarding the JSC only the day before. On April 18, 2017, Judge Keesler denied the Plaintiff's motion regarding a change in the JSC and further ordered that if the Plaintiff had not already submitted her confidential settlement brief to his chambers, she was directed to do so immediately. [Docs. 95, 96].

         On April 19, 2017, the Court's chambers received a telephone call from attorney Charles Brewer (hereinafter “Mr. Brewer”) who indicated that he and another attorney, Gary Dodd (hereinafter “Mr. Dodd”), would possibly make an appearance in the case for the Plaintiff. However, Mr. Brewer expressed concern about making such a late appearance in light of the case schedule. In response to the aforementioned telephone call, the Court noticed a hearing for a status conference. [See Notice of Hearing dated April 19, 2017].[3] On April 21, 2017, at the status conference, Mr. Brewer and Mr. Dodd expressed concern about making appearances in the matter without the trial date being preemptively continued to the next civil trial term. The Plaintiff also made a motion to continue (hereinafter “First Motion to Continue”) the JSC and trial date so that she could have counsel.[4] The Court stated that it was not inclined to grant a continuance, particularly considering that no counsel had made an appearance on behalf of the Plaintiff and that Mr. Brewer and Mr. Dodd were merely exploring the possibility of making an appearance. After hearing further from Mr. Brewer, Mr. Dodd, the Plaintiff, and the Defendants' counsel, the Court denied the motion to continue the trial without prejudice and ordered that the JSC go forward as scheduled. The Court further determined that Mr. Dodd would be allowed to make a special appearance limited to the JSC proceeding. The Court also conveyed to the parties that if an attorney made a general appearance on behalf of Plaintiff for trial, then the posture of the case would change in a manner that would constitute a reasonable basis for a continuance. The Court, however, also informed the parties that an appearance on behalf of Plaintiff would need to be made soon in order to avoid disruption of the docket and minimize any prejudice to the Defendants. On that basis, the Court made clear to the Plaintiff that unless Mr. Brewer, Mr. Dodd, or any other attorney filed a notice of appearance on behalf of Plaintiff by April 26, 2017, at 12:00 p.m., the case deadlines and trial date would remain unchanged.

         On April 24, 2017, the JSC resulted in an impasse and the April 26, 2017, deadline passed without an attorney filing an appearance on behalf of the Plaintiff. [See Minute Entry dated April 24, 2017]. It was, therefore, clear to the Plaintiff that the trial would go forward on May 8, 2017, and the deadlines as set in the Case Management Order (as amended) stood. The Plaintiff, however, failed to make any filings as required by the deadlines set forth in the Case Management Order, even though the Defendants made their filings in a timely manner. [See Docs. 87, 92, 97, 98, 99, 100].

         On April 28, 2017, the Court held a lengthy final pretrial conference with the parties. [See Minute Entry dated April 28, 2017]. At that time, the Plaintiff had still not made any of the required pretrial filings, despite virtually all of the deadlines provided by the Case Management Order having passed. [See Docs. 58, 87]. The Plaintiff then for the first time asserted that she had understood Judge Keesler's April 13, 2017, Order to stay the pretrial filing deadlines until the JSC was completed. The Plaintiff referred to the section of Judge Keesler's Order that stated, “[a]ll parties to this lawsuit will participate in [the JSC] pursuant to the [Pro Se] Program and as directed by this Order before undertaking any other action with respect to this lawsuit.” [Doc. 91 at ¶ 1]. In full context, the Plaintiff's reading of Judge Keesler's Order was erroneous, but the Court was again willing to give the Plaintiff the benefit of the doubt, considering her pro se status. The Court, however, noted the erroneous reading by Plaintiff did not justify her failure to make any of the required pretrial filings after the JSC. The Court also noted that the Plaintiff had actually benefited from her delay because the Defendants had complied with the Case Management Order and thus the Plaintiff was given advanced warning as to Defendants' contentions regarding evidentiary issues.

         At the final pretrial conference, the Plaintiff also asserted that the JSC had been “very traumatic, ” and accused the Defendants of having perpetrated a fraud upon the Court. The Plaintiff then inquired as to when the Court would pierce the corporate veil, and asserted that any result at the trial of this matter would be void. The Plaintiff went on to admit that she had not subpoenaed any witnesses for the trial and had not exchanged any exhibits with the Defendants, despite having received the Defendants' exhibits. The Plaintiff often made statements that were not pertinent to the Court's inquiries and would refer to documents that, after rummaging through her voluminous papers and boxes, she could not find. Once again, the Plaintiff made another motion to continue (hereinafter “Second Motion to Continue”) the trial date. The Court denied the Plaintiff's request for a continuance, but under the circumstances, gave the Plaintiff a new deadline of 12:00 p.m. on May 1, 2017, to provide her exhibits to the Defendants.

         On May 2, 2017, well past nearly all of the Plaintiff's deadlines and only six (6) days before trial, the Plaintiff filed a motion entitled “Plaintiff's Motion for Extension of Time to Continue Trial” (hereinafter “Third Motion to Continue”). [Doc. 101]. The Court noticed the motion to be heard on May 5, 2017. [See Text Order dated May 2, 2017].[5] At the hearing, the Plaintiff admitted that she still had not exchanged her exhibits with the Defendants and justified her failure to comply with the Case Management Order by again asserting (without offering any support) that the Defendants had engaged in criminal misconduct, fraud, and unconstitutionally deprived Plaintiff of due process.[6] Throughout the hearing, the Plaintiff again was disorganized, unable to find exhibits or papers for her arguments, and was unable to meaningfully address the Court's inquiries in regard to the status of her preparation for trial, notwithstanding the Court's previous admonitions to seek counsel or to prepare earnestly for trial. The Plaintiff also presented the Court with a partial exhibit list that the Court found wholly inadequate. Plaintiff's exhibit list only designated broad categories of documents as possible exhibits with virtually no identification of what particular documents would actually be used as exhibits, in complete disregard of the instructions set forth in the Case Management Order.[7] [See Doc. 87].

         Later in the hearing, the Plaintiff stated for the first time that she wanted to play some unspecified recording or recordings during the trial. The Defendants objected, arguing that Plaintiff had never provided a copy of such recording(s) in discovery, and had not even disclosed the existence of such recording(s). The Plaintiff then inquired into how to designate excerpts of deposition transcripts from another matter that she intended to present at the trial of this matter. The Court directed Plaintiff to email the deposition transcripts and designations to Defendants' counsel as soon as possible and provide an exhibit list that followed the instructions of the Case Management Order by 9:00 a.m. on May 8, 2017, the morning of trial.

         The Plaintiff also requested she be accommodated during the trial by being allowed to use some sort of cardboard podium so that she could stand during much of the proceedings. Despite the Plaintiff not having produced any medical evidence regarding the need for such an accommodation, the Court agreed to allow the Plaintiff to stand and to use some sort of podium.

         The Court offered Plaintiff various options available in the courthouse to accommodate the Plaintiff's asserted need. The Plaintiff rejected all of the accommodations the Court offered and insisted upon the use of the aforementioned cardboard podium. The Court advised the Plaintiff that if she wished to use the cardboard podium that she needed to email photographs of it to the Court that afternoon, in order to allow the Court to determine if the device could pass through security and be used in the courtroom. Despite the Court's clear instructions and directions regarding all of the above, the Plaintiff did not provide anything to the Court or the Defendants, or make any effort to comply with the Case Management Order deadlines as extended by the Court.

         At 7:36 a.m. of the morning of trial, the Plaintiff emailed a member of the Clerk's Office staff a motion entitled “Emergency Motion for Continuance” (hereinafter “Fourth Motion to Continue”). [Doc. 105].[8] Attached to the Plaintiff's motion was a picture purporting to be the files worked on by the Plaintiff in preparation for trial. [Doc. 105-1].[9] The Plaintiff's motion asserted, among other things, that as a result of the trial preparation she had been “forced” to do by the Court, she had exacerbated her original back injury and had to “seek evaluation and treatment this morning of trial in hope of continuing at a later day without the pain and risk of further injury.” [Doc. 105 at 2]. The Plaintiff's motion requested that the matter be continued until she could “recover adequately to proceed or find competent counsel.” [Id.] The Plaintiff's motion provided no medical documentation or physician statement. At 8:09 a.m. the Plaintiff also left a message on the chambers voicemail indicating she had emailed the Clerk's Office and the parties to the case her Fourth Motion to Continue, and that she was on her way to urgent care.

         On Monday, May 8, 2017, at 9:01 a.m., the matter was called for trial and the Plaintiff failed to appear in Court to prosecute her action. In light of Plaintiff's Fourth Motion to Continue, the Court released the jury pool to an early lunch to see if Plaintiff would appear and withheld ruling on the motion. In the interim, the Defendants' objected to the Plaintiff's motion to continue and filed their Motion to Dismiss for Failure to Prosecute pursuant to Federal Rule of Civil Procedure 41(b). [Doc. 107]. The Court received no further communications or documentation from the Plaintiff, and at no time did Plaintiff appear to prosecute her action or advocate her motion. The documents Plaintiff subsequently filed with the Court showed no medical condition that prohibited her appearance. Upon resumption of the matter after the lunch break, the Court made inquiries of Defendants' counsel and was informed that Plaintiff had not made any further communications with Defendants' counsel and that Plaintiff had also failed to provide or exchange any materials as directed by the Court over the prior weekend or the morning of trial. The Court then proceeded to address the Plaintiff's motion to continue and the Defendants' motion to dismiss, making lengthy findings on the record.

         With regard to Plaintiff's Fourth Motion to Continue, the Court addressed each asserted ground in the Plaintiff's motion. The Plaintiff asserted as follows in her motion:

1) In Plaintiff's attempt to follow the Court's order to go to trial on May 8, 2017, Plaintiff exceeded her physical capacity and medical restrictions.
2) This preparation was forced upon her by this Court that admitted that granting such continuances were common in most federal jurisdictions but not by this Court.
3) As a result of this preparation Plaintiff has an exacerbation of her original back injury.
4) Any continuation to trial at this point will have severe consequences.
5) There is a Constitutional guarantee of “no cruel or unusual punishment” or any “trial by torture.” 6) This court was and is aware of the Plaintiff's injury and there are ample medical records in the record in support of this.
7) Even the drive to the Courthouse can easily exacerbate this condition. (cf. Dr. Rudin's driving restitutions on Plaintiff in the Record)
8) Therefore Plaintiff must seek evaluation and treatment this morning of trial in hope of continuing at a later day without the pain and risk of further injury.
9) The plaintiff once again reminds this Court of incontrovertible evidence that defendants committed felonies by stopping all indemnity and medical payments WITHOUT a court order, which is required by North Carolina Statute.
10) This Court can only serve justice if it considers the opinion of North Carolina Court of Appeals on withholding benefits after a failed return to work trial. Celia A. Bell, Employee-Plaintiff v. Goodyear Tire an Rubber Company, Employer, Liberty Mutual Insurance Company, Carrier, efenants No. COA 15-1299 (21 Marcy 2017).
Defendants' failure to follow the law is the cause of this delay of trial and have now once again caused injury to the Plaintiff.
Wherefore Plaintiff requests this trial be continued until Plaintiff can recover adequately to proceed or find competent counsel.
In Addition, we wish the Court to take Notice that once again as happens always and ONLY before an important Court date, Plaintiff's NEW printer ...

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