Case No. 99-11173, Proc. No. 99-1121.United States Bankruptcy Court, N.D. Indiana, Fort Wayne Division
February 3, 2000.
DECISION
HON. ROBERT E. GRANT, United States Bankruptcy Judge.
Plaintiff initiated this adversary proceeding in order to determine the dischargeability of the defendant/debtors’ obligation to it. Debtors answered and, on August 25, 1999, the court issued a scheduling order, which required the parties to jointly file a proposed pre-trial order within ninety days. When that deadline passed without any activity, on December 16 the court issued an order to show cause. This order noted that the pre-trial order was overdue and gave the parties twenty-one days to either correct that deficiency or show cause why compliance with the court’s scheduling order should be excused. It also contained the admonition that a failure to comply could result in dismissal without further notice.
The twenty-one days specified by the order to show cause (and a few more) passed without any response. The court received neither a pre-trial order nor an explanation for its absence. Accordingly, by an order issued on January 12, 2000, the court did what it had threatened it might and dismissed the case.
The order of dismissal roused plaintiff’s counsel from its apparent lethergy. On January 20, plaintiff filed a verified motion asking the court to vacate the order of dismissal and to issue a new scheduling order.[1] That motion is before the court for a decision.[2] Both the dismissal of a case due to a plaintiffs failure to prosecute the action and the question of whether such an order should be set aside are matters committed to the court’s discretion. Pyramid Energy Ltd. v. HeylPatterson, Inc., 869 F.2d 1058 (7th Cir. 1989).
As an explanation for its inactivity, plaintiffs motion indicates that the parties began settlement negotiations in August of 1999, which culminated in a settlement in November of that year. Consequently, counsel states that he assumed the matter had been settled and was simply awaiting a stipulation reflecting this fact before advising the court. Then, on January 17, 2000,[3] plaintiffs counsel learned that the defendants refused to enter into the agreed upon settlement. Based upon this explanation, plaintiff asserts that good cause exists to set aside the order of dismissal and to enter a new scheduling order. The court disagrees.
Plaintiffs motion is founded upon an erroneous proposition — that settlement negotiations somehow relieve parties of the obligation to comply with a scheduling order establishing the timetable for litigation. The court cannot imagine any other perception which might justify plaintiffs request that the court not only excuse the original failure to file a pre-trial order within the time required, but also to issue an entirely new scheduling order, resetting all of the deadlines for this litigation. Plaintiffs perception is wrong. While the courts encourage and even applaud parties’ efforts to settle litigation on mutually satisfactory terms, those negotiations do not relieve litigants of the obligation to comply with a scheduling order. That order lays out the critical path for the litigation and the parties must structure their negotiations around that timeline. They are not free to unilaterally adjust the deadlines established by a scheduling order to suit their negotiations. See Simon v. Pay Tel Management. Inc., 782 F. Supp. 1219, 1225-26 (N.D. Ill., 1991), aff’d, 952 F.2d 1398 (7th Cir. 1992). Accordingly, absent the ability to tender an agreed judgment, the prospects that the case had been or would be settled did not relieve the parties of the obligation to file a pre-trial order within the deadline established by the court.
The failure to file a pre-trial order within the time required is not the only example of plaintiff s failure to comply with the orders of the court. As noted earlier, the court put the parties on notice that the case was in danger of being dismissed because they had failed to file the required pre-trial order. The order to show cause issued on December 16, 1999 alerted counsel to the fact that the court believed the case was languishing on its docket and to what needed to be done to avoid a dismissal. Counsel was then given three weeks in order to either file the required pre-trial order or offer some explanation as to why it should be excused from doing so. Only after this deadline passed without a response did the court dismiss the case.
Although plaintiffs motion proffers an explanation as to why a pre-trial order was not filed within the time required, it does nothing to explain why counsel did not respond to the order of December 16, 1999. Given the fact that the case was not dismissed until after plaintiff failed to respond to the order to show cause, to have any hope of persuading the court to vacate the dismissal, plaintiffs counsel not only had to explain the failure to comply with the original scheduling order, but also justify the failure to respond to the order of December 16, 1999. While plaintiffs motion makes an effort to explain the failure to file a pre-trial order, it offers no explanation for the failure to respond to the order of December 16, 1999.
The pre-trial order is now more than two months overdue. The case has been dismissed because the parties failed to file it within the time required and then plaintiff failed to do anything to explain that failure when first given the opportunity to do so. In asking the court to vacate the order of dismissal, one would think that plaintiff would have done everything conceivably possible to persuade the court that it is ready, willing, and able to prosecute this action, with the speed of light if necessary. Instead, counsel asks the court to restart the litigation process and, long after all deadlines have expired, issue yet another scheduling order.
The ability to comply with all of the missed deadlines which led to the dismissal of this case was well within the meaningful control of plaintiff or its counsel. To reinstate the case under these circumstances would be to abandon all hope that the court could ever effectively enforce its scheduling orders. See Pyramid Enemy, 869 F.2d at 1063.Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir. 1986). Plaintiff’s motion for relief from judgment, filed on January 20, 2000, will be denied. An order doing so will be entered.