Jonathan Hollander Portland, OR, Plaintiff Pro Se.
Steven A. Kraemer, Leslie A. Edenhofer, HART WAGNER LLP, Portland, OR, Attorneys for Defendant Rainier School District.
OPINION AND ORDER
DENNIS J. HUBEL, Magistrate Judge.
On October 31, 2013, the Court entered an Opinion and Order, wherein it: (1) informed Plaintiff Jonathan Hollander ("Plaintiff") that he would be required to sit for a deposition that would take place in the mediation room on the ninth floor of the Hatfield Courthouse, located at 1000 Southwest Third Avenue in Portland, Oregon; (2) ordered Plaintiff to confirm to the Court and counsel, in writing, by November 12, 2013, at 12:00 p.m., whether he planned on appearing in person for his deposition; (3) ordered Plaintiff to produce, by November 12, 2013, at 12:00 p.m., all records substantiating any other expenses, economic or special damages, for which Plaintiff contends Defendant is liable for the period of January 1, 2010, through the present, and all records relating to any counseling or psychological therapy of any type sought by Plaintiff for the period of January 1, 2008, through the present; and (4) informed Plaintiff that a telephone scheduling conference was going to be held on November 13, 2013, at 1:30 p.m., to set the date of Plaintiff's deposition and a date for oral argument on Plaintiff's pending motion for summary judgment.
The November 12, 2013 deadline came and passed without Plaintiff confirming whether he planned on appearing in person for his deposition or producing the outstanding discovery described above.
At approximately 1:30 p.m. on November 13, 2013, the Court attempted to convene a telephone scheduling conference with the parties. Prior to contacting Defendant Rainier School District's ("Defendant") counsel and placing her on hold, the courtroom deputy made several unsuccessful attempts to contact Plaintiff via the telephone number and email address listed for him on the District of Oregon's electronic filing system, as well as the telephone number previously provided by Defendant's counsel. The courtroom deputy's email to Plaintiff is attached as Exhibit 1.
As described in great detail in the October 31, 2013 Opinion and Order, (Op. & Order, Docket No. 87), which is incorporated herein by reference, this is not the first time Plaintiff has failed to appear for a hearing or comply with this Court's orders. Indeed, in the October 31, 2013 Opinion and Order, the Court explicitly warned Plaintiff that his conduct and failure to comply with court orders could result in the dismissal of his case:
Plaintiff has failed to appear for three hearings and been more than a little obstructive in his approach to this case over the last several months. The Court warned Plaintiff that, if he failed to attend the October 30[, 2013] hearing, he should expect a show cause order requiring him to demonstrate why this case should not be dismissed. The Court has clearly set forth what Plaintiff must do to proceed with his case in this order. If he fails to do any part of what is ordered here without obtaining permission in writing from the Court at least twenty-four hours in advance, a hearing will be promptly scheduled on Defendant's motion to dismiss (Docket No. 75) and Plaintiff will be required to file his arguments against dismissal in writing seven business days before that hearing and attend that hearing. If Plaintiff's explanation for failing to follow this court order is not satisfactory, his case will be dismissed either with or without prejudice, whichever the facts support at that time.
(Op. & Order, Docket No. 87.)
In light of Plaintiff's failure to comply with the October 31, 2013 Opinion and Order, the Court implemented lesser sanctions during the November 13, 2013 scheduling conference, namely, striking Plaintiff's pending motion (Docket No. 57) for summary judgment. Cf. Stephens v. Nike, Inc., No. 3:11-cv-00736-HU, 2012 WL 1801832, at *1 (D. Or. May 17, 2012 (citing Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th Cir. 1994)). The Court also (1) discussed the feasibility of less drastic sanctions, such as striking Plaintiff's claim for damages and/or non-economic or emotional distress damages; (2) set a hearing on Defendant's pending motion (Docket No. 75) to dismiss for December 5, 2013, at 1:30 p.m.; (3) set a deadline of November 22, 2013, at 4:30 p.m., for Plaintiff to respond in writing to Defendant's motion to dismiss and also explain his continued failure to comply with the Court's orders; and (4) set a deadline of November 22, 2013, at 4:30 p.m., for Defendant to supplement the record on its pending motion to dismiss.
Plaintiff is expected to appear for the December 5, 2013 oral argument either in person or by telephone (if by phone, he must contact the Court in writing advising of his intent and supplying a working phone number he will actually answer on December 5, 2013). For further details regarding the November 13, 2013 scheduling conference, ...