Lebbos v. Heinrichs

696 F. Supp. 1279, 12 Fed. R. Serv. 3d 1065, 1988 U.S. Dist. LEXIS 11375, 1988 WL 105848
CourtDistrict Court, N.D. California
DecidedApril 6, 1988
DocketNo. C-83-3134 WHO
StatusPublished
Cited by2 cases

This text of 696 F. Supp. 1279 (Lebbos v. Heinrichs) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lebbos v. Heinrichs, 696 F. Supp. 1279, 12 Fed. R. Serv. 3d 1065, 1988 U.S. Dist. LEXIS 11375, 1988 WL 105848 (N.D. Cal. 1988).

Opinion

OPINION AND ORDER

ORRICK, District Judge.

I

This case, untried after five long years, is a tort action charging defendant, Dr. Daniel J. Heinrichs, with medical malpractice. Plaintiff, Betsey Warren Lebbos, herself a lawyer, appearing pro se, claims that, after being raped and the victim of an attempted murder in 1973, she suffered [1280]*1280psychogenic amnesia of these events and later suffered post-traumatic stress disorder. Plaintiff further claims that defendant committed medical malpractice by failing to diagnose these conditions and by failing to treat her with hypnosis and the drug amatyl.

At a pretrial conference, scheduled to plan for the sixth trial date, plaintiff moved for yet another continuance of the trial. Conscious of the rights of defendant, whose reputation has been tarnished by plaintiffs allegations and who has not been afforded an opportunity to clear himself as a result of plaintiffs misconduct, unreasonable delay, and failure to follow rules and orders of the Court, and for other reasons hereinafter set forth, the Court is now dismissing the case, sua sponte, for lack of prosecution and for failure to follow the Federal Rules of Civil Procedure (hereinafter cited as “Federal Rules”), the Local Rules of the United States District Court for the Northern District of California (hereinafter cited as “Local Rules”), and the orders of the Court.

A

The pretrial conference was held on March 3, 1988, where plaintiff through her attorney, John Hartford, orally requested a continuance of the trial date for at least three weeks. This request was made without notice to the Court, and with very short notice to defendant, in violation of the Federal Rules and Local Rules. Defendant’s counsel, Philip Pillsbury, opposed the request, which was made only four days before the scheduled trial date of March 7, 1988. Defendant’s counsel presented the Court with a history of the case, which the Court verified from the records of the litigation, that revealed that this continuance would be the sixth continuance of a fixed trial date in this case.

The basis for plaintiff’s request is that she is emotionally and psychologically disabled as a result of her severe distress over the illness and impending death of her mother. This has prevented her from being competent either to assist her attorney in the conduct of her case or from conducting her own case, pro se. At the pretrial conference, plaintiff’s counsel presented the Court with a signed declaration reciting his knowledge of plaintiff’s distressed and disabled state based on his observations of her conduct and of her behavior in failing to cooperate with him to prepare the case over the past three months. Attached to the declaration was a signed letter from Dr. William D. Pierce, a clinical psychologist, who concluded that plaintiff was not currently competent to assist in the conduct of her coming trial. Dr. Pierce described her emotional and psychological disabilities based upon a one-and-three-quarters-hour interview with plaintiff.

At the pretrial conference, the Court ordered the trial to go forward on Monday, March 7, because of the serious prejudice to defendant from yet another delay in this trial, and because of the long history of plaintiff’s failure to meet deadlines set by the Court. Plaintiff’s counsel sought to withdraw when this ruling was made because he was completely unprepared to conduct the trial as a result of plaintiff’s failure to cooperate. The Court allowed Mr. Hartford to withdraw as counsel of record, but appointed him to assist plaintiff in the conduct of the trial.

Putting to one side the failure of plaintiff’s counsel to come forward earlier than four days before trial, upon further review of Dr. Pierce’s letter, the Court became increasingly concerned about plaintiff’s condition. On Monday, March 7, 1988, the Court ordered plaintiff to have an psychiatric competency examination with Dr. Robert Cahan, a Court-appointed psychiatrist, to determine whether or not she was mentally and emotionally competent to conduct her case, or even to assist an attorney in the conduct of the trial. The trial was continued until Tuesday, March 8, 1988, in order for the Court to receive and evaluate the psychiatric opinion of Dr. Cahan.

Dr. Cahan informed the Court on Monday afternoon that, based on a one-and-one-half-hour examination, he had concluded that although plaintiff might be competent to testify as a witness, or assist retained counsel, she was entirely incompetent to [1281]*1281conduct her own case because of her current emotional and mental disability. Based upon Dr. Cahan’s opinion, as well as that of Dr. Pierce, the Court determined that there was no choice but to continue the trial. Accordingly, counsel and the parties were informed that the trial would be postponed indefinitely until the Court could determine the appropriate resolution of the matter.

B

The history of this litigation is a sorry one. The complaint was filed almost five years ago on June 29, 1983. At that time, and throughout most of this litigation, plaintiff appeared pro se. The answer was filed on July 29, 1983, and the first status conference held on September 29, 1983. The case was continued for a further status conference by telephone on December 8, 1983, but plaintiff failed to make herself available by phone. Judge Thelton E. Henderson, who had the case at this time, ordered that the status conference be continued until January 24, 1984, and ordered sanctions in the amount of $100 to be paid by plaintiff for her failure to appear. This was just the first incident in what was to be a long history of delay, failure to follow the rules and orders of the court, and misconduct by plaintiff in this seemingly interminable litigation.

1. First Trial Date — January 8, 1985.

On January 12, 1984, Judge Henderson ordered that the status conference be continued until January 31, 1984, and that the parties cease corresponding. Plaintiff had been attempting to make motions by letter instead of by filing properly-noticed motions. At the January 31 conference, the first trial date was set for January 8, 1985, giving plaintiff nearly a year to prepare the case. Plaintiff filed an amended complaint on June 20, 1984, as well as a demand for a jury trial. Plaintiff did pursue discovery, filed some of the required pretrial papers, and attended the pretrial conference on November 19, 1984. However, plaintiffs narrative statements of the witnesses were so rambling and so full of inadmissible and prejudicial testimony, that Judge Henderson was compelled to order that the direct and cross-examinations of the expert witnesses be submitted in written, question-and-answer form before he would allow them to testify. It was also necessary to exclude many witnesses and exhibits.

Meanwhile, on November 29, 1984, defendant filed a motion to dismiss the action for lack of subject matter jurisdiction on the grounds that there was no diversity of citizenship, that plaintiff was a California resident, and that she had moved to Georgia for only a few months for the purpose of creating diversity of citizenship. Plaintiff failed to appear at the hearing on December 17, 1984, at which argument was to be made on defendant’s motion.

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Cite This Page — Counsel Stack

Bluebook (online)
696 F. Supp. 1279, 12 Fed. R. Serv. 3d 1065, 1988 U.S. Dist. LEXIS 11375, 1988 WL 105848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lebbos-v-heinrichs-cand-1988.