Opinion
CIVIL ACTION NO. 3:99-CV-2511-G.
May 29, 2001.
MEMORANDUM ORDER
Before the court is the motion of plaintiff Ana Les ("Les") for (1) an enlargement of time to comply with local rule 83.10; (2) a relaxation of local rule 83.10 allowing Scott A. Ozmun, Esq. to appear as both plaintiff's local counsel and co-counsel; and (3) an order reinstating the case following the court's order of dismissal dated May 1, 2001. For the following reasons, the motion is denied.
Background
The original complaint was filed in this case on November 4, 1999. See Complaint. The complaint alleges that eight separate companies collected, processed, and sold tainted blood clotting products used by Les's son ("Baby Les") in the treatment of his hemophilia. Complaint at 7-8. Les further alleges that as a result of these tainted transfusions, Baby Les contracted the Hepatitis C virus. Id. at 2. See Complaint. Les was granted leave to proceed without local counsel on November 5. Order Granting Leave to Proceed Without Local Counsel, November 5, 1999 (Docket Entry 4). Les failed to effect service upon three of the defendants — National Hemophilia Foundation, Centeon, Inc., and Armour Pharmaceutical — within 120 days of filing her complaint. On March 6, 2000, the court ordered Les to show cause by March 20, 2000 why her claims against those two defendants should not be dismissed. Order, March 6, 2000 (Docket Entry 26). Les's response to the court's show cause order was filed four days late on March 24, 2000. On April 4, 2000, the court issued another show cause order requiring Les to move for default against defendant National Hemophilia Foundation by April 18, 2000. On April 4, 2000, the court vacated its order granting Les leave to proceed without local counsel, noting that "[t]he plaintiff has not been diligent in prosecuting this case or in observing the local rules of this court." Order, April 4, 2000 (Docket Entry 35).
Les obtained local counsel and maintained such counsel until March 23, 2001. See Notice of Designation and Appearance of Local Counsel, April 24, 2000 (Docket Entry 43); see also Order, May 23, 2000 (Docket Entry 55) (granting plaintiffs' motion to substitute Bruce A. Budner, Esq. for Terrell W. Oxford, Esq. as plaintiffs' local counsel); Order, March 23, 2001 (Docket Entry 81) (granting motion of local counsel to withdraw). Even while Les had local counsel, the court unfiled two of her submissions for violation of the local rules of this court. See Order, March 2, 2001 (Docket Entry 66) and Order, March 15, 2001 (Docket Entry 77). After Les's local counsel were granted leave to withdraw, Les moved for a 90 day extension of all deadlines in the case to allow her time to obtain new local counsel. Motion, Filed March 26, 2001 (Docket Entry 84). The court denied the motion to extend all deadlines but granted Les thirty days from March 29, 2001 to obtain new local counsel. Order, March 29, 2001 (Docket Entry 85). The order provided that if local counsel had not entered an appearance within the time provided, the case would be dismissed without further notice. Id. On May 1, 2001, when no new local counsel had appeared for Les, the case was dismissed.
On March 30, 2001, defendant New York Blood Center filed its motion for summary judgment. Les failed to respond to the motion and the motion was granted by memorandum order dated April 25, 2001. While Les's failure to respond violated no order of the court, it provides further evidence of Les's unwillingness to diligently prosecute her case.
At the time of her motion to extend all deadlines by 90 days, this case had been pending on the court's docket for sixteen and one half months.
Thirty days from March 29, 2001 fell on April 28, 2001. Because April 28, 2001 was a Saturday, the deadline for Les to obtain local counsel was Monday, April 30. Les's Notice of Designation and Appearance of Local Counsel and Co-Counsel was filed on May 1, 2001.
Discussion
Les now complains that the court has been unfair in dismissing her complaint for failing to obtain local counsel within the time allotted. See Motion for an Order Allowing Enlargement of Time to Comply with Local Rule 83.10 and a Relaxation of Local Rule 83.10 Allowing Scott A. Ozmun, Esq. to Appear as Both Plaintiff's Local Counsel and Co-Counsel and an Order Reinstating the Above Caption [sic] Action Pursuant to FED. R. CIV. P. 6(b) and/or in the Alternative FED. R. CIV. P. 60(b) ("Motion") at 8. Les contends that because local counsel for two defendants, Baxter Healthcare and Alpha Therapeutic, are located in Beaumont, Texas and Houston, Texas respectively, she should be permitted to have local counsel from Austin. Id. at 3-5. Les argues that for the court to permit "multinational drug companies" to have local counsel from over 50 miles away while denying "a fourteen year old Plaintiff with multiple disabilities" the same privilege "would be patently unfair and unduly harsh." Id. at 8. Les misses the point. As discussed above, Les's inaction has forced the court to issue two show cause orders, and many (if not most) of her filings have been late and deficient. Such behavior wastes scarce judicial resources.Les selected the instant forum in which to pursue her action and she must abide by its rules. It was contemplated at the status conference held on May 23, 2000 that a number of defendants might not be proper parties to the suit because Baby Les may never have used their blood products. See Transcript of Hearing on Joint Status Report Before the Honorable A. Joe Fish ("Transcript"), May 23, 2000, at 20-21, 23-24, 26. Accordingly, this court issued a scheduling order providing that during the first phase of discovery (between November 10, 2000 and April 27, 2001), the parties would attempt to determine which defendants were proper parties to the suit by virtue of having provided the clotting products actually used by Baby Les. Scheduling Order, October 16, 2000 (Docket Entry 63), at 3. The court believes that it may properly make a distinction between (1) the plaintiff who selected this forum but who has been chronically derelict in her dealings with this court and (2) defendants who may not even be proper parties to the suit but who, nevertheless, have never filed a deficient or late pleading. Accordingly, the motion is DENIED.