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Judge Paul L. Friedman
Order to Show Cause in
Bagenstose v. District of Columbia
December 1, 2000




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CHARLES M. BAGENSTOSE,  Plaintiff,  v. DISTRICT OF COLUMBIA, et al., Defendants.

Civil Action No. 00-0228 (PLF)


Regrettably, this matter has become yet another example in a long line of cases before this Court where the Office of the Corporation Counsel has failed to execute even its most fundamental responsibilities. The Office's recent failure to follow a rather straightforward Order requiring that an attorney — any attorney — appear at a status conference, and that a notice of appearance be filed in advance of the conference, is simply inexcusable. The Office of the Corporation Counsel has left the Court with no option other than to require the attorneys of record in this case, as well as the Corporation Counsel himself, to show cause why each of them should not be held in contempt of court and why other available sanctions should not be imposed.

The complaint in this case, brought by a former District of Columbia Public Schools teacher who is proceeding pro se, was filed on February 9, 2000. When the District of Columbia (or more precisely the Office of the Corporation Counsel) failed to answer the complaint within the time prescribed by the Federal Rules of Civil Procedure, the Clerk of the Court entered a default against the defendants on March 21, 2000. When the District finally made an appearance, it was to plead with the Court to set aside the default and allow defendants to file an answer. In what appeared then to be the interests of justice, the Court set aside the default and allowed the case to proceed.

At a meet and confer status conference on July 27, 2000, the parties suggested that this case be referred to mediation. Although the matter was immediately referred to the Court's Alternative Dispute Resolution Program, the District sought to terminate the mediation after only one session. 1n a joint written report from the parties regarding the status of settlement discussions, plaintiff suggested that further mediation would be helpful, while defendants asked the Court to issue a scheduling order and move forward with this case.

On the same date that the status report was filed. Assistant Corporation Counsel Andrew W. Racca filed a praecipe indicating that he was leaving the Office of the Corporation Counsel, but that his supervisors would remain as counsel of record in this case. Recognizing that Mr. Racca's replacement might not be assigned for a week or two, the Court issued an Order on November 3, 2000, that set a status conference for November 28, 2000. In its Order, the Court expressly directed that Mr. Racca's replacement submit a notice of appearance in advance of the status conference. The Order was sent to Managing Attorney for Public Schools Litigation Lisa A. Bell, Assistant Deputy Corporation Counsel William J. Earl, and Senior Deputy Corporation Counsel for Torts and Equity John C. Greenhaugh — the latter two being the individuals named by Mr. Racca in his notice of withdrawal as his supervisors and therefore counsel of record in this case.

No one from the Office of the Corporation Counsel filed a notice of Appearance prior to November 28, and, to the Court's great displeasure. no one appeared at the status conference. Inexplicably. more than three weeks' notice was sufficient for a pro se plaintiff who lives to Upper Marlboro, Maryland, to be present for the status conference but not for the District of Columbia's Office of the Corporation Counsel. These events have tapped the Court's reservoir of patience and good will previously reserved for the Office of the Corporation Counsel. If it were a viable option, the Court would sua sponte reinstate the default and move with haste toward entering a default judgment against the District and providing plaintiff with the relief he seeks, but it is not clear that Rule of Civil Procedure gives the Court such flexibility.

The Office of the Corporation Counsel's deplorable history of failing to comply with court orders, to meet court-imposed deadlines, and even to appear at status conferences is well documented is order after order entered by the undersigned and by alter Members of this Court. The appointment of a new Corporation Counsel last year at this time — which was accompanied by promises of more effective case management, more efficient communication between the Court and the Office and within the Office, and general reform — gave the Court hope that things might he improving. They are not. The Office of the Corporation Counsel appears to be infected with mismanagement, miscommunication and — frankly — incompetence. The Office's failures have reached a level that is beyond mere inconvenience or frustration to the Court and the litigants who appear before it. The continuing delays, procedural gaffes and pleas for leniency are now threatening the effective administration of justice in the District of Columbia and can no longer he tolerated by this Court or by the people of the District of Columbia whom the Office purports to represent. Accordingly, it is hereby

ORDERED that Lisa A. Bell, Managing Attorney for Public Schools Litigation; William J. Earl. Assistant Deputy Corporation Counsel; John C. Greenhaugh, Senior Deputy Corporation Counsel for Torts & Equity; and Robert R. Rigsby, Corporation Counsel for the District of Columbia, shall show cause in writing on or before December 15, 2000, why each of them personally and the Office they represent should not be held in contempt of court and why other available sanctions should not be imposed.


United States District Judge

DATE: 12/1/00

Copies to:

Charles Bagenstose
Robert R. Rigsby, Esq.
John C. Greenhaugh, Esq.
William J. Earl, Esq.
Lisa A. Bell, Esq.

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