Snyder v. Bank of America, N.A.

Opinion

1 2 3 6 7 PAMELA MARIE SNYDER, Case No. 15-cv-04228-KAW

8 Plaintiff, ORDER REGARDING MOTION TO 9 v. WITHDRAW; ORDER TO SHOW CAUSE 10 BANK OF AMERICA, N.A., et al., Re: Dkt. No. 335 11 Defendants.

12 13 As required by the Court’s October 13, 2020 case management and pretrial order, the joint 14 pretrial statement, exhibits, jury instructions, voir dire, excerpts from discovery, and verdict forms 15 were due on January 5, 2021. (Dkt. No. 313 at 7.) Plaintiff, however, did not provide her pretrial 16 filings. Instead, Plaintiff’s counsel, Attorney Applbaum, filed a motion to withdraw, citing 17 irreconcilable differences, lack of communication, and financial hardship due to Plaintiff’s failure 18 to pay attorney’s fees. (Mot. to Withdraw at 2-3, Dkt. No. 335.) Attorney Applbaum further 19 stated that Plaintiff has asserted that she is medically and psychologically incapable of coping with 20 the stress of this case, but refused to exercise a HIPAA release to allow counsel to communicate 21 with her medical provider as to her claims. (Applbaum Decl. ¶ 5.) Attorney Applbaum also stated 22 that Plaintiff has been “unable to answer basic questions pertaining to her case[,] making it 23 difficult, borderline impossible to carry out [his] representation effectively.” (Applbaum Decl. ¶ 24 5.) Plaintiff did not file a motion to extend the time to provide her pretrial filings. 25 Defendant, in turn, has requested that the Court dismiss this action due to Plaintiff’s failure 26 to comply with the October 13, 2020 order, pursuant to Federal Rule of Civil Procedure 16(f). 27 (Def.’s Pretrial St. at 2, Dkt. No. 329.) Rule 16(f) permits the Court to sanction a party if the party 1 cv-3728-MEJ, 2017 U.S. Dist. LEXIS 164025, at *4 (N.D. Cal. Oct. 3, 2017) (dismissing case per 2 Rule 16(f) based on the plaintiff's failure to timely submit pretrial materials). 3 Accordingly, the Court ORDERS as follows: 4 First, the Court will hold a hearing on Attorney Applbaum’s motion to withdraw at the 5 pretrial conference, which remains set for January 28, 2021 at 2:00 p.m. Any opposition shall be 6 filed by January 19, 2021. 7 Second, the Court ORDERS Plaintiff to show cause, by January 15, 2021, why this case 8 should not be dismissed as a sanction under Rule 16(f) or for failure to prosecute under Rule 9 41(b). See Henderson vy. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (“The district court has the 10 inherent power sua sponte to dismiss a case for lack of prosecution” under Rule 41(b)”). The 11 Court observes that pursuant to the Court’s October 13, 2020 order, “[n]o party shall be permitted 12 tocall any witness or offer any exhibit in its case in chief that is not disclosed in its pretrial 5 13 statement, exchanged with opposing counsel, and delivered to the Court . . . without leave of the 14 Court and for good cause.” (Dkt. No. 313 at 5.) Based on Plaintiff's failure to provide her pretrial 3 15 filings, as well as Plaintiff's apparent failure to communicate with her attorney and answer basic 16 questions about her case, it appears highly likely Plaintiff will not be permitted to call any 3 17 witnesses or offer any exhibits to a jury in this case.! 18 Third, the Court ORDERS Plaintiff to appear at the January 28, 2021 pretrial conference, 19 which will be conducted by Zoom. Plaintiff must be prepared to explain her failure to 20 communicate with her attorney, as well as her failure to provide the required pretrial filings. 21 Failure to appear will result in the Court dismissing the case for failure to prosecute. 23 Dated: January 6, 2021 '

25 United States Magistrate Judge 26 27 ' The Court also observes that after repeatedly requesting a settlement conference, Plaintiff failed 2g || to prepare for the December 17, 2020 settlement conference before Judge Beeler, resulting in the settlement conference being vacated.