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Howell v. Holland America Line Usa Inc.

United States District Court, W.D. Washington, Seattle

October 17, 2014

RAYMOND K. HOWELL SR., Plaintiff,
v.
HOLLAND AMERICA LINE USA INC., et al., Defendants.

ORDER GRANTING MOTION FOR SANCTIONS

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court is Defendants Holland America Line Inc., Holland America Line - USA Inc., and Holland America Line N.V. d/b/a Holland America Line N.V., LLC's (collectively "HAL") motion for sanctions against Plaintiff Raymond K. Howell, Sr. ( See HAL Mot. (Dkt. # 42).) Specifically, HAL asks the court to impose terminal sanctions by dismissing Mr. Howell's lawsuit without prejudice and to award costs and fees as well. ( Id. at 2 ("Defendants request an order dismissing Plaintiff's lawsuit with an award of costs, including reasonable attorney's fees.").) In addition, Mr. Howell has filed a motion seeking a four-month extension of all case schedule deadlines to permit him additional time to find an attorney and "to accommodate 3rd and 4th medical procedures to correct continuing problems resulting from my fall...." (Howell Mot. (Dkt. # 44) at 1.) Because the court finds that Mr. Howell has repeatedly delayed the prosecution of his lawsuit and generally has been unwilling to participate in discovery absent a court order, the court grants HAL's motion for sanctions and dismisses Mr. Howell's lawsuit with prejudice. The court, however, declines to order Mr. Howell to pay HAL's expenses and legal fees. The court also denies Mr. Howell's motion for a four-month extension of the case schedule deadlines for the reasons stated below.

II. BACKGROUND

This action is for personal injuries. ( See generally Compl. (Dkt. # 1).) Mr. Howell alleges that he was a passenger aboard a Holland America cruise liner on April 27, 2012, when he slipped and fell while attempting to take a shower. ( Id. ¶¶ 4-6.) Mr. Howell alleges that he broke his fifth and sixth vertebrae and suffered other substantial injuries as a result of his fall. ( Id. ¶ 8.) He alleges that he remained hospitalized for an extended period of time and has been forced to utilize a walker. ( Id. ¶ 9.) He alleges that HAL was both negligent and breached its contractual duties to him. ( Id. ¶¶ 10-11.)

Mr. Howell filed this action on April 25, 2013. ( See generally Compl.) On June 19, 2013, Mr. Howell's first attorney moved to withdraw as his counsel. (1st Mot. to Withdraw (Dkt. # 7).) On July 8, 2013, the court granted this motion. (7/8/13 Order (Dkt. # 8).) Mr. Howell later retained two more attorneys ( see 7/22/13 Notice of App. (Dkt. # 9); 1/17/14 Notice of App. (Dkt. # 16)), but both of these attorneys also moved to withdraw. ( See 2d Mot. to Withdraw (Dkt. # 17); 3d Mot. to Withdraw (Dkt. # 20).) The court granted these motions as well. ( See 3/13/14 Order (Dkt. # 19); 4/2/14 Order (Dkt. # 21).) The court's April 2, 2014, order stated that until Mr. Howell retained another local attorney, he should receive notice through his Nevada counsel at the time. (4/2/14 Order at 1.)

On April 17, 2014, Mr. Howell's attorney in Las Vegas, Nevada, also moved to withdraw. (4th Mot. to Withdraw (Dkt. # 22).) Although his Nevada attorney had never formally appeared, he moved to withdraw "[o]ut of an abundance of caution" because he had been referenced by another lawyer as Mr. Howell's "Nevada counsel." ( Id. at 2.) The motion was "based upon the breakdown in the attorney-client relationship." ( Id. at 1.) The court granted this motion to withdraw on May 7, 2014. (5/7/14 Order (Dkt. # 23).)

Since the court granted his last attorney's motion to withdraw, Mr. Howell has been proceeding pro se with his lawsuit. Although he previously indicated to the court that he is attempting to retain new counsel in Seattle, Washington (Resp. (Dkt. # 34) at 1), to date, no such counsel has appeared. ( See generally Dkt.) Indeed, Mr. Howell indicates in his present motion for a four-month extension of the case schedule deadlines that he now has exhausted all of his sources for finding new legal representation. (Howell Mot. at 1 ("To find an attorney, I have exhausted very [sic] path I could think of as a source.").)

On May 22, 2014, HAL filed its first motion to compel against Mr. Howell asking the court to order Mr. Howell to sign medical releases for medical records relevant to his lawsuit. (5/22/14 HAL Mot. (Dkt. # 24).) On June 12, 2014, the court granted HAL's motion and "cautioned" Mr. Howell "that failure to follow court orders may result in dismissal of [his] claim." (6/12/14 Order (Dkt. # 27) at 2.)

On June 26, 2014, HAL filed its second motion to compel or dismiss against Mr. Howell. (6/26/14 HAL Mot. (Dkt. # 29).) Specifically, HAL asked the court to compel Mr. Howells' responses to HAL's interrogatories and requests for production or to dismiss his lawsuit. ( See id. ) HAL had served Mr. Howell with its interrogatories and requests for production of documents May 20, 2013, but at the time of its motion (more than one year later) had succeeded in obtaining only a partial response. ( See 7/30/14 Order (Dkt. # 40) at 2.)

On July 30, 2014, the court granted in part and denied in part HAL's second motion. ( See generally id. ) The court declined to dismiss Mr. Howell's lawsuit, but characterized his responses as "woefully inadequate" and his delay of more than one year as "highly unwonted." ( Id. at 2, 8.) The court ordered Mr. Howell to "fully respond to all of HAL's requests for production of documents and interrogatories within fourteen days." ( Id. at 8.) The court also expressly warned Mr. Howell that "there [wa]s no longer any time to waste, " that the court would "not tolerate any future unreasonable delays in the discovery process, " and "that any further unwarranted delay in responding to HAL's properly noted and served discovery requests may alter the court's analysis" with respect to dismissal of his action. ( Id. )

In its reply memorandum with respect to the foregoing motion, HAL also raised concerns about Mr. Howell's failure to appear for his properly noted deposition and independent medical examination ("IME"). ( See 7/30/14 Order at 4, n.1 (citing 7/17/14 Reply (Dkt. # 36) at 2-4 (providing "ADDITIONAL RELEVANT FACTS"); id. at 7-10 (providing argument as to why HAL is entitled to dismissal for Mr. Howell's failure to attend his deposition and IME)).) Because these issues were raised for the first time in HAL's reply memorandum, the court declined to rule on them. ( Id. ) The court, nevertheless, expressly warned Mr. Howell, as follows:

Without some articulated, reasonable basis for doing so, a party's refusal to provide dates upon which that party is willing to be deposed or to submit to an IME is not generally reasonable conduct in discovery. Further, a plaintiff who refuses to appear for deposition or an IME after notice has been properly served risks the imposition of sanctions, including the possibility of dismissal ...

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