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16-1810 - Keaton v. Rehabilitation Services et al


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16-1810 - Keaton v. Rehabilitation Services et al
March 9, 2018
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ORDER. For the reasons discussed in the attached, the 54 motion to dismiss is GRANTED in part and DENIED in part. The case will proceed with respect to Keaton's failure-to-promote and retaliation claims (Counts One and Two). Counts Three and Four, as well as Keaton's claim for punitive damages, are DISMISSED.Defendant argues that the Court should not consider Keaton's Second Amended Complaint at all, as it was filed one day after the court-ordered deadline, and as the Court had previously warned Keaton that the Court would not allow further amendments in the event she continued to miss court-ordered deadlines. (ECF No. 54-1 at 5-6, 9-12.) Keaton's Second Amended Complaint was in fact untimely filed, and there was no ambiguity in the Court's order requiring Keaton to file any second amended complaint within fourteen days of May 16, 2017, i.e., no later than May 30, 2017. (ECF No. 49.) The Court appreciates that defense counsel has had to draft and file several iterations of a motion to dismiss because of Keaton's failure to comply with court-ordered deadlines regarding amendments to the complaint, and that this case has been substantially delayed as a result. Nonetheless, the Court finds that striking the Second Amended Complaint would have no practical effect because the Court has dismissed Count Four, the claim that Keaton untimely added (ECF No. 29 at 3-5). This does not mean, however, that there should be no sanction for Plaintiff's repeated failures -- even after multiple warnings -- to follow court orders, as set forth on pages 3 to 6 and 9 to 12 of Defendant's brief. (ECF No. 54-1.) Because the Court is loath to punish the Plaintiff for the apparent repeated errors of her lawyer, however, the Court finds that it should consider imposing some sanction against Plaintiff's counsel. Therefore, within fourteen days of this order, Defendant shall file a statement estimating the extra time defense counsel was required to spend responding to the Second Amended Complaint and shall indicate the hourly rate the State assigns to her time for purposes of fee applications. Within seven days of such filing, Plaintiff's counsel shall file a statement showing cause why the Court should not require him to pay the State the expenses set forth in defense counsel's statement, or at least a reasonable portion thereof. Failure by Plaintiff's counsel to respond timely to the Defendant's filing in response to this order will result in the Court's imposing a monetary sanction of $250.00 on Plaintiff's counsel in addition to any fee award. As discovery was stayed pending the Court's ruling on the motion to dismiss, within fourteen days of this order, the parties shall also confer and file a proposed revised schedule for this case in accordance with Local Rule 26(f). Signed by Judge Michael P. Shea on 3/9/2018. (Taykhman, N.)