United States District Court, D. Kansas
CLAYTON E. CONSER Plaintiff,
BRONSON CAMPBELL and CITY OF VALLEY FALLS, KANSAS Defendants.
ORDER CERTIFYING FACTS PURSUANT TO 28 U.S.C. §
HONORABLE GWYNNE E. BIRZER U.S. MAGISTRATE JUDGE.
matter is before the Court on Movant Roger W. Warren's
Motion to Compel Payment of Mediator's Fees (ECF No. 56),
the undersigned Magistrate Judge's Order granting that
motion (ECF No. 58), and Plaintiff's failure to respond
to, or comply with, that Order.
review of the files and records of the Court, the undersigned
Magistrate Judge certifies the following to the Honorable
Carlos Murguia, United States District Court Judge:
Certification of Facts
January 2018, the parties to this action participated in
mediation with Roger Warren acting as mediator. (ADR Report,
ECF No. 33.) On September 19, 2018, Mr. Warren filed a motion
representing although Defendants paid their half of Mr.
Warren's mediation fees, Plaintiff failed to pay his
half, in the amount of $787.50, and Plaintiff's counsel
ignored repeated requests for payment. (Motion, ECF No. 56.)
Pursuant to 28 U.S.C. § 636(b)(1), the District Judge
referred Mr. Warren's Motion to Compel Payment of
Mediator's Fees to the undersigned Magistrate Judge.
(Order Referring Motion, ECF No. 57.) Following that
referral, and a lack of response from any party to that
motion, the undersigned granted the motion as uncontested
pursuant to D. Kan. Rule 7.4. (Order, ECF No. 58.)
the uncontested nature of the motion, the undersigned briefly
examined the Court's jurisdiction over Mr. Warren's
. . . prior to granting the motion, a brief discussion of the
Court's jurisdiction over the request is necessary. This
matter was dismissed prior to the filing of Movant's
motion. (See Memorandum and Order, ECF No. 54;
Judgment, ECF No. 55.) The Court notes, although Movant did
not address the issue in his motion, it has sua sponte
reviewed the standards by which it may, in its discretion,
assert ancillary jurisdiction over Movant's
Applying those standards, the Court finds this request arose
from the undersigned's Scheduling Orders in this case,
ordering the parties to participate in mediation (ECF Nos.
22, 29). Deciding the request requires no further factfinding
proceeding, particularly in this instance, where the motion
is unopposed. Additionally, although not deciding the motion
would not deprive any party of any important procedural or
substantive right, this Court finds the issue should be
decided in order to protect the integrity of the proceeding.
As previously mentioned, this Court directly ordered the
parties to participate in mediation, and in doing so, expects
both the parties and counsel subject to its order to follow
through with the entire mediation process-including the full
payment of the mediator's fees.
(Order, ECF No. 58). In the Order, Plaintiff was directed to:
1) pay the mediator's fees owed to Mr. Warren no later
than 10 days following entry of the Order; and 2) file a
notice of compliance within five days following that payment.
November 29, 2018, after a review of the docket revealed no
notice of compliance was filed, the undersigned set this
matter for telephone hearing on December 5, 2018. (Notice of
Hearing, ECF No. 59.) In the Notice, the undersigned
explained: “[f]ailure to comply with this order may
result in sanctions, up to and including a finding of
contempt. The Court expects the movant, Mr. Warren, to also
participate.” The Notice was transmitted to all parties
by ECF notification, as well as by email to those addresses
contained on the Court's docket. (Id.)
informal request to the undersigned, Defendants' counsel
was excused from the December 5, 2018 hearing. Only one party
appeared for the hearing-mediator/movant Roger Warren. During
the hearing, Mr. Warren stated he had received no contact
from Plaintiff's counsel, and still had not been paid
Plaintiff's portion of the mediation fees. Mr. Warren
also informed the undersigned that this is not the first case
in which Plaintiff's counsel, Mr. Adebayo I.K. Ogunmeno,
has failed to pay Mr. Warren's mediator fees.
date, Plaintiff has failed to comply with the
undersigned's Order of November 6, 2018 (ECF No. 58), and
failed to appear before the undersigned as noticed (ECF No.
Authority of United ...