UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________________

)

ANDREA PETERSON, )

)

Plaintiff, )

)

v. ) Civil Action No. 08-1326 (RWR)

)

ARCHSTONE, )

)

Defendant. )

__________________________________________)

MEMORANDUM OPINION

On October 6, 2009, this matter was referred to Magistrate Judge Alan Kay for the purpose

of resolving the parties’ discovery disputes. As of November 18, 2009, there were 11 discoveryrelated motions pending, and both parties had requested a hearing on one or more of their

respective motions. On October 14, 2009, Magistrate Judge Kay entered a Minute Order granting

Archstone’s request for an emergency hearing [Dkt. # 65], setting the hearing on October 23,

2009, at 2:00 p.m. in Courtroom 7, at which time he would hear arguments on Archstone’s

emergency motion to quash deposition notices and for a protective order [Dkt. # 65], its motion to

compel plaintiff’s deposition and for sanctions [Dkt. # 59], and on plaintiff’s motion for a

protective order [Dkt. # 62], which was construed as plaintiff’s opposition to Archstone’s motion

to compel her deposition and for sanctions. Magistrate Judge Kay rescheduled the hearing at

plaintiff’s request [Dkt. # 68] for November 3, 2009, at 10:30 a.m. in Courtroom 7. On

November 2, 2009, he entered a minute order to confirm that the hearing would proceed on the

following day as scheduled. Archstone’s counsel appeared; plaintiff did not. On November 23,
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2009, the Court issued an order to show cause why this civil action should not be dismissed for

plaintiff’s failure to prosecute. 

Plaintiff represents that she “neither arbitrarily nor brazenly disregarded the Court Order”

setting the November 3, 2009 motions hearing. Pl.’s Resp. to Court Order to Show Cause (“Pl.’s

Resp.”) ¶ 2. She states that she “was surprised by the Order” because, at that time, she believed

that her motions for a change of venue and for Magistrate Judge Kay’s recusal [Dkt. # 69] were

still pending and believed they operated to suspend all proceedings and to cancel the hearing. Id.

¶ 4; see id. ¶¶ 11, 17. Plaintiff is mistaken, as neither belief has any basis in fact or law. The

undersigned denied plaintiff’s motion to change venue [Dkt. # 71] and Magistrate Judge Kay

denied her motion for recusal on October 23, 2009 [Dkt. # 72], eleven calendar days before the

scheduled motions hearing. Although plaintiff filed a notice of intent to seek reconsideration of

these rulings [Dkt. # 73] on October 26, 2009, she did not file her motion for reconsideration until

November 10, 2009 [Dkt. # 78], seven days after the scheduled hearing. Moreover, plaintiff cites

to no rule, statute, case or order that filing a motion to change venue or for recusal or filing a

notice of intent to seek reconsideration operates to suspend or cancel a hearing ordered by the

court. To the contrary, Magistrate Judge Kay issued a minute order on November 2, 2009, to

confirm that the November 3, 2009 hearing was to take place as scheduled. 

Further, plaintiff represents that she “made multiple efforts to obtain clarification” by

contacting the undersigned’s current and former Courtroom Deputy Clerks, Magistrate Judge

Kay’s Courtroom Deputy Clerk, and Magistrate Judge Kay’s chambers staff on November 2 and

November 3, 2009. Pl.’s Resp. ¶¶ 5, 14. In addition, plaintiff represents that she “placed a

courtesy call to defendant[’s] counsel” on November 2, 2009, “ to advise her that it was doubtful
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that plaintiff would be traveling from the New York area to Washington, DC for a hearing at

10:30 a.m. the following morning.” Id. ¶ 15. Plaintiff “respectfully submits that [she] has

followed the required court procedures” by making “multiple efforts to obtain clarification that the

case was suspended” such that she “did not . . . willfully disregard the court set hearing.” Id. ¶ 17. 

Plaintiff’s attempts to obtain “clarification” by contacting court staff do not excuse her 

absence. The relevant court orders set and confirmed a motions hearing for November 3, 2009,

before Magistrate Judge Kay in Courtroom 7, and no court order directed otherwise. Nothing in

plaintiff’s response to the order to show cause or in the docket of this case reflects any attempt by

plaintiff to obtain leave not to appear in person at the November 3, 2009 motions hearing. Her

failure to appear inconvenienced the Court and caused the opposing party to incur costs associated

with its appearance. 

“The authority of a court to dismiss sua sponte for lack of prosecution has generally been

considered an inherent power, governed not by rule or statute but by the control necessarily vested

in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of

cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (citations and internal quotation

marks omitted); see Local Civil Rule 83.23 (authorizing dismissal of a civil action for failure to

prosecute either on an adverse party’s motion or on the Court’s own motion). Accordingly, the

order to show cause will be discharged and this civil action will be dismissed for plaintiff’s failure

to prosecute. All pending motions will be denied as moot.

An Order accompanies this Memorandum Opinion.

Signed this 4 day of January, 2010. th

 /s/ 

RICHARD W. ROBERTS

United States District Judge