Reyes v. City of Phoenix

          ORDER

          JAMES A. TEILTRORG, SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Plaintiff Gracie M. Reyes' (“Plaintiff”) Motion to Reinstate Case. (Doc. 19). Plaintiff argues that the judgment of dismissal against her should be amended and the case reinstated pursuant to Federal Rule of Civil Procedure (“Rule”) 59(b) to give her the opportunity to present her claim. Plaintiff asserts that her failure to meet and confer with Defendant City of Phoenix (“Defendant”) pursuant to Rule 26(f), her failure to expeditiously initiate communications necessary to prepare the Joint Proposed Case Management Plan (“Joint Plan”), and her failure to provide good cause at the May 10, 2018 show cause hearing was due to her unfamiliarity with the procedures of federal litigation while proceeding pro se. Having now obtained outside counsel, Plaintiff argues it is in the interest of justice that the Court allows her to further prosecute her claims. Defendant argues that parties proceeding pro se are not exempt from applicable rules of procedure. Defendant asserts further that dismissal is an appropriate sanction for repeatedly failing to comply with Court orders and the motion to reinstate the case is essentially a motion to reconsider the Court's initial decision.

         I. Background

         Plaintiff was employed by Defendant for over nine years. (Doc. 1 at 2). Plaintiff filed a complaint pro se on December 22, 2017, alleging claims of retaliation, wrongful termination, sex discrimination, and emotional distress against Defendant. (Doc. 1 at 2- 6). Plaintiff thereafter received a multitude of pro se materials and resources from the Court, including a link to: (1) the Local Rules of Practice for the District of Arizona; (2) the Handbook for Self-Represented Litigants; (3) Frequently Asked Questions; and (4) Forms for Pro Se Litigants. (Doc. 3 at 6). The Plaintiff was also given notice of the Volunteer Lawyers Program. (Doc. 3 at 7).

         Plaintiff did not serve Defendant until March 21, 2018, three months after commencing the action. (Doc. 6). Defendant promptly answered the complaint on March 28, 2018. (Doc. 7). This response triggered the Mandatory Initial Discovery Pilot (“MIDP”) under General Order 17-08, (Doc. 4), requiring initial discovery disclosures from both parties within 30 days of the response. (Doc. 8 at 3).

         On March 28, 2018, pursuant to Rule 16, the Court set a scheduling conference (“Scheduling Conference”) for May 10, 2018. (Doc. 8). Under Rule 26(f), twenty-one days before the Scheduling Conference, the parties are to meet and develop a Joint Plan to be jointly filed not less than ten days before the Scheduling Conference. (Doc. 8 at 2- 4). Plaintiff received an Order from the Court stating it is the responsibility of Plaintiff to “expeditiously initiate” the communications necessary to prepare the Joint Plan. (Doc. 8 at 4).

         On April 27, 2018, the deadline set in the Court's Rule 16 Order, Defendant mailed its MIDP responses to Plaintiff and filed notice of this with the Court. (Doc. 10). On April 30, 2018, Defendant filed a Rule 26(f) report pursuant to the MIDP with Defendant's Proposed Discovery Plan. (Doc. 11). The plan was missing the factual and legal bases for Plaintiff's claim as well as the discussion and completion of Plaintiff's MIDP responses. (Doc. 11 at 1, 6). According to Defendant, Plaintiff failed to initiate communications to prepare the Joint Plan as required by the Court's Rule 16 Order, and ultimately failed to respond at all. (Doc. 11 at 1 n.1).

         In the first of multiple attempts to set a date for the Rule 16 Scheduling Conference, Defendant called Plaintiff and left a message, and followed-up with an email. (Doc. 11, Ex. A). On April 12, 2017, attorney Lori Brown (“Brown”) contacted Defendant, purporting to represent Plaintiff, and requested all relevant documentation and a phone conference to discuss the case. (Doc. 11, Ex. A at 4). On April 16, 2018, Brown sent a follow-up email to Defendant requesting a response. (Id.)

         On April 17, 2018, Defendant emailed Brown regarding the approaching filing deadline for the Joint Plan. (Doc. 11, Ex. A at 2). On April 18, 2018, Plaintiff directly responded to Defendant and requested a copy of the Scheduling Conference dates. (Id.)

         Subsequently, Plaintiff emailed Defendant stating she had secured Branham Law Offices PC (“Branham”) as her legal representation in this case. (Doc. 11, Ex. A at 13). On April 23, 2018, Defendant sent an email to Branham, listing the upcoming mandatory deadlines under the Court's Rule 16 Order. (Id.) On April 24, 2018, Branham responded to Defendant stating they were not representing Plaintiff in this matter. (Id.) Defendant notified Plaintiff that Branham was not representing her and requested once again to meet and confer regarding the Joint Plan. (Id.)

         On April 26, 2018, in response to an email Plaintiff sent that morning, Defendant provided Plaintiff with the draft Joint Plan. (Doc. 11, Ex. A at 5). The email from Plaintiff indicated she believed communication regarding the Joint Plan was Defendant's responsibility. (Doc. 11, Ex. A at 5).

         On April 30, 2018, Defendant filed a Notice of Non-Compliance and a Request for Order to Show Cause because of Plaintiff's failure to participate in a Rule 26(f) conference and failure to draft her portion of the Joint Plan. (Doc. 12). The Court ordered that on May 10, 2018, Plaintiff appear and show cause why this case should not be dismissed due to her failure to participate in the preparation of the Joint Plan. (Doc. 13). Further, the order stated that failure to respond to the pending partial motion to dismiss was to be deemed as consent to the motion being granted. (Id.)

         On May 10, 2018, the Court ruled that the Plaintiff did not show good cause for failing to engage with Defendant in preparing the Joint Plan and failing to respond to the pending partial motion to dismiss. (Doc. 16). The Court ordered dismissal of the case without prejudice and ordered the Clerk of Court to enter judgment accordingly. (Doc. 16). On May 31, 2018, Plaintiff filed the Motion to Reinstate Case, currently pending before this Court. (Doc. 19). On June 18, 2018, Defendant responded. (Doc. 21).

         Neither Plaintiff nor Defendant cites the appropriate standard under Rule 59(e). Rather, Plaintiff argues it is in the interest of justice to reinstate the case and continue its prosecution because of her alleged difficulties in navigating the federal litigation system as a pro se plaintiff. Now, having obtained legal counsel, she argues that the judicial leniency granted to pro se plaintiffs when considering the sufficiency of pleadings and ...