United States District Court, D. Maine
RECOMMENDED DECISION BASED ON DEFENDANT'S FAILURE
TO SHOW CAUSE
C. NIVISON, U.S. MAGISTRATE JUDGE.
1, 2017, the Court entered a Scheduling Order through which
the Court established December 5, 2017, as the trial-ready
date. (ECF No. 18.) Following a conference with
Plaintiff's counsel and Defendant Knowlton, the Court
amended the Scheduling Order to establish a trial-ready date
of January 9, 2018. (ECF No. 27.) The matter was scheduled
for a final pretrial conference on December 6, 2017, at 11:00
a.m. (ECF No. 28.)
December 6, 2017, at 11:00 a.m., Plaintiff's counsel
appeared for the pretrial conference telephonically.
Defendant did not appear personally or telephonically, and
did not communicate in any way with the Court regarding the
pretrial conference. Because Defendant failed to appear for
the conference, failed to file a final pretrial memorandum,
and otherwise failed to communicate with the Court, on
December 6, 2017, the Court ordered Defendant to show cause
in writing on or before December 22, 2017, why the Court
should not enter a default against him. (ECF No. 31.) The
Court cautioned Defendant that if he failed to show cause, a
default could enter against him. (Id.)
has not filed any pleading in response to the Show Cause
Order, and has not otherwise communicated with the Court.
Given Defendant's failure to show cause, I recommend the
Court enter a default against Defendant and schedule a
hearing on Plaintiff's damages.
Rule of Civil Procedure 16(f) provides:
General. On motion or on its own, the court may issue any
just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney:
(A) fails to appear at a scheduling or other pretrial
(B) is substantially unprepared to participate - or does not
participate in good faith - in the conference; or
(C) fails to obey a scheduling or other pretrial order.
Imposing Fees and Costs. Instead of or in addition to any
other sanction, the court must order the party, its attorney,
or both to pay the reasonable expenses - including
attorney's fees - incurred because of any noncompliance
with this rule, unless the noncompliance was substantially
justified or other circumstances make an award of expenses
37(b)(2)(A)(vi) authorizes the Court to impose sanctions,
including the entry of a default judgment, upon a party's
failure to comply with a court's pretrial order. A party
who disregards a court order “does so at its own
peril.” Hooper-Haas v. Ziegler Holdings, LLC,
690 F.3d 34, 37 (1st Cir. 2012). Whether default is an
appropriate sanction for the violation of a court order
depends on the circumstances of each case. Id. at
38. Among the factors a court should consider are whether the
party had “fair warning of the possible consequences of
the misconduct, ” and an opportunity to be heard.
case, upon Defendant's failure to file a pretrial
memorandum, failure to attend the pretrial conference, and
failure to communicate in any way with the Court in advance
of the pretrial conference, the Court did not immediately
enter a default. Instead, the Court provided Defendant the
opportunity to show cause as to why a default should not
enter against him. The Court advised Defendant that his
failure to show cause could result in the entry of a default.
In other words, the Court notified Defendant of the possible
consequence of his failure to participate in the pretrial
process and afforded him the opportunity to explain his lack
of compliance with the ...