Franklin v. McDonough

Background

The court held a video status conference on June 7, 2022. Defendant appeared, but plaintiff David M. Franklin did not. Franklin had not responded to the court’s earlier invitation about the type of appearance he preferred, did not respond to the court’s email attempts during the conference, and could not be reached by telephone using the number listed with the court.

Defense counsel reported that Franklin had last communicated with him by email in February 2022, although counsel had been able to send Franklin an email as recently as May 23, 2022. Counsel also said Franklin had not participated in scheduling a settlement conference or indicated whether he would attend one scheduled for July 20, 2022. The court was also informed that its Pro Se Program had unsuccessfully tried to contact Franklin.

Order

The court stated that Franklin is responsible for prosecuting his action in a timely way and for keeping the court and opposing counsel informed of any changed contact information. The court was concerned about his failure to respond to communications and attend the court-ordered status conference.

The court ordered Franklin to file a written response by June 17, 2022, explaining why the action should not be dismissed for failure to prosecute. It also ordered him to appear in person on June 21, 2022, for a show-cause hearing addressing the court’s concerns. The court stated that if Franklin failed to respond by the deadline or failed to appear at the hearing, it would dismiss the action without prejudice. The court directed the clerk to mail him a copy of the order at the address listed on the docket.

Disposition

Judge Virginia K. Demarchi issued an order to show cause; the order did not itself dismiss the action. The threatened dismissal was expressly described as without prejudice. Defendant was not required to attend the June 21 hearing.