United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
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.
reasons stated below, the Plaintiff's Complaint is
dismissed with prejudice and the Plaintiff's motions are
FACTUAL AND PROCEDURAL BACKGROUND
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].
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.].
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].
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]. 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].
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]. 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. 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.
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].
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.
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
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]. 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. 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. [See Doc. 87].
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.
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.
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.
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]. 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]. 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.
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.
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
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
Defendants' failure to follow the law is the cause of
this delay of trial and have now once again caused injury to
Wherefore Plaintiff requests this trial be continued until
Plaintiff can recover adequately to proceed or find competent
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 ...