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Dale v. Equine Sports Medicine & Surgery Race Horse Service, PLLC

United States District Court, N.D. Texas, Fort Worth Division

April 25, 2017

WILLIAM O. DALE AND A. JAMES STREELMAN, Plaintiffs,
v.
EQUINE SPORTS MEDICINE & SURGERY RACE HORSE SERVICE, PLLC, AND DR. BOYD CLEMENT, Defendants.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE, United States District Judge

         For the reasons given in this order, the court tentatively has concluded that all claims and causes of action asserted by plaintiffs, William 0. Dale ("Dale") and A. James Streelman ("Streelman"), should be dismissed pursuant to the authority of Rule 41(b) of the Federal Rules of Civil Procedure.[1]

         Prefatory Statement

         After having selected this court as the place to file their lawsuit, plaintiffs, within a few months after they filed it, decided that they would prefer not to have a trial in this court. Since then they have displayed an unparalleled level of intransigence in their efforts to avoid such a trial.

         As the Pertinent History of the Litigation set forth below discloses, plaintiffs first sought, in February 2016, a transfer of this action from this court to a court in New Mexico. When that failed, a few months later they unsuccessfully sought dismissal without prejudice, presumably so they could refile it in New Mexico. Plaintiffs persisted in their efforts to obtain a dismissal of this action without prejudice by the filing of an unsuccessful motion to reconsider.

         Within a few days after this court denied the motion to reconsider, plaintiffs filed a lawsuit that was almost identical to this action in the United States District Court for the District of New Mexico, but made no disclosure to this court that the duplicate action had been filed. While the court hesitates to speculate as to exactly what plaintiffs had in mind by the filing of the duplicate New Mexico action, the most reasonable inference to be drawn is that the filing of that action was a part of a plan by the plaintiffs to avoid a trial in this court and to shift the venue to the federal court in New Mexico. Plaintiffs kept the New Mexico action alive on the docket there until plaintiffs were forced to dismiss it in February 2017 because of their failure to cause service of process to be made on the defendants.

         In a continuation of their attempts to have their trial in New Mexico rather than this court, plaintiffs next filed a petition for writ of mandamus with the United States Circuit Court of Appeals for the Fifth Circuit seeking an order from the Fifth Circuit directing this court either to transfer this action to a court in Mew Mexico or to dismiss it without prejudice. When the Fifth Circuit denied the petition the day after it was filed, plaintiffs sought rehearing, which the Fifth Circuit promptly denied.

         When this action went to trial on December 12, 2016, as set in the February 2 016 scheduling order, plaintiffs conducted themselves in such a way that a mistrial was declared only a few hours after the trial testimony started. Following the mistrial, and before the court had an opportunity to obtain a record of the proceedings and to initiate appropriate action related to the events that led to the mistrial, plaintiffs, in what appeared to be an attempt to preempt action by the court, started a mudslinging campaign that they must have hoped would bring this action to an end in their favor without the need for a trial. The court concluded, and ordered, that none of the filings the parties made in December 2016 and January and February 2017 were meritorious other than perhaps the filing by defendants seeking sanctions related to the conduct that led to the mistrial.

         In March 2 017, the court scheduled the retrial of this action for April 17, 2017. Plaintiffs objected, assigning reasons why that date was not acceptable to them. When the court took into account in an appropriate way plaintiffs' reasons by rescheduling the trial for April 25, 2017, plaintiffs then assigned new and different reasons as to why April 25 was not an acceptable trial date.

         Interwoven in the motions plaintiffs filed complaining of the trial date were allegations that the court was refusing to provide protection to one of plaintiffs' witnesses from a non party to this litigation who, according to plaintiffs and their witness, was a threat to the safety of the witness and his family. After the court informed the parties that it had arranged for the protection of that witness by a deputy United States marshal during the retrial of this action, his safety no longer was assigned as a reason why this action should not go to trial on its April 2 5 trial setting, but new and different reasons were given.

         When the court made known to the parties that the court was not going to grant another continuance, and that this action definitely was going to trial as scheduled on April 25, 2017, plaintiffs informed the court that they were not going to trial on that date. In other words, they informed the court that they were not going to comply with an order the court issued on March 30, 2017, rescheduling the trial for April 25, 2017, and ordering plaintiffs, their attorneys, defendants, their attorneys, and all witnesses who were to testify at the trial to be present at the Fort Worth Courthouse at 9:00 a.m. on April 25, 2017, for trial.

         By the notice given by plaintiffs to the court that they were not going to comply with the court's March 30 setting order, plaintiffs' intransigence culminated in a direct failure to comply with a court order, and a clear cut failure to prosecute their action as it should have been prosecuted. Therefore, a dismissal of the action pursuant to the authority of Rule 41(b) of the Federal Rules of Civil Procedure is appropriate at this time for each of those reasons.

         Pertinent History of the Litigation

         A. The Complaint

         This action was initiated on October 30, 2015, by the filing by plaintiffs in this court of their complaint against Equine Sports Medicine and Surgery and Dr. Boyd Clement ("Clement"), complaining of veterinarian treatment Clement provided to Raw Hide Canyon, a race horse owned by plaintiffs, which they alleged ultimately led to the horse's death. Doc. I.[2] Plaintiffs alleged that Clement was a veterinarian employee of the Equine Sports defendant, which was a licensed veterinarian clinic specializing in the medical care and treatment of race horses. Id. at ECF I, [3] With leave of court, plaintiffs filed their first amended complaint on January 22, 2016, Doc. 19, making essentially the same claims they made in their original complaint, but changing the name of the Equine Sports defendant to "Equine Sports Medicine & Surgery Race Horse Service, PLLC" ("Equine Sports"). Doc. 19 at 1.

         B. The Joint Status Report and Scheduling Order

         On February 19, 2016, the parties filed a joint status report. Doc. 23. Plaintiffs requested a trial setting in October or November of 2016, and defendants asked for a February 2017 trial date. Id. at ECF 2. On February 22, 2016, the court issued a scheduling order, setting this action for jury trial the week of December 12, 2016, and scheduling a pretrial conference for November 7, 2016. Doc. 24 at 2, ¶¶ 5 & 6.

         C. Plaintiffs' Motion for Change of Venue

         On February 26, 2016, plaintiffs filed a motion for change of venue pursuant to 28 U.S.C. § 1404(a), alleging that most, if not all, factors to be considered in connection with such a motion weighed in favor of transferring venue from this court to the United States District Court for the District of New Mexico. Doc. 2 5 at ECF 8. Defendants responded on March 17, 2016, in opposition to the motion for change of venue. Doc. 26. The court's memorandum opinion and order denying the motion for change of venue was issued April 5, 2016. Doc. 27.

         D. Plaintiffs' Motion to Dismiss Without Prejudice

         Next, on May 20, 2016, plaintiffs filed a motion to dismiss this action without prejudice, but with certain conditions being imposed, Doc. 31, to which defendants responded in opposition on June 9, 2016, Doc. 32. The court issued an order on June 23, 2016, denying the motion. Doc. 35. On July 28, 2016, plaintiffs filed a motion asking the court to reconsider its denial of the motion, together with a supporting declaration of one of the attorneys of record for plaintiffs, Docs. 37 & 38, to which defendants responded on August 16, 2016, Doc. 40. The court issued an order on August 16, 2016, denying the motion to reconsider. Doc. 41.

         E. The Duplicate New Mexico Lawsuit

         The court learned for the first time from the contents of a document filed by defendants on January 23, 2017, that on August 24, 2016, plaintiffs filed a lawsuit in the United States District Court for the District of New Mexico that was almost identical to the instant action.[4] Doc. 122 at 2, ¶ 4 & Ex. A. The record in the New Mexico action shows that as of January 11, 2017, plaintiffs still had not served either defendant with process in that action, Case No. 1:16-CV-00953-KBM-KK (D.N.M.), Doc. 3, and that plaintiffs did not take steps to dismiss the action until February 10, 2017, when they filed a notice of dismissal without prejudice, id., Doc. 4, apparently to avoid an involuntary dismissal pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, id., Docs. 3 & 4.

         F. The Pretrial Conference The pretrial conference was conducted as scheduled on November 7, 2016, Doc. 75, at which time the court issued an order requiring the parties to engage in final trial preparation activities, Doc. 78.

         G. The Petition for Writ of Mandamus

         In the meantime, on November 1, 2016, plaintiffs filed a petition for writ of mandamus with the United States Court of Appeals for the Fifth Circuit, alleging that this court abused its discretion by denying plaintiffs' motion to transfer venue and by denying plaintiffs' motion to dismiss without prejudice and the subsequent motion to reconsider, and that this court failed to equally apply its scheduling order to plaintiffs and defendants. Doc. 66 at i (Table of Contents). The Fifth Circuit ordered the denial of the petition for writ of mandamus by an order issued November 2, 2016, and by the same order denied a motion plaintiffs had filed to stay further proceedings ...


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