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Conser v. Campbell

United States District Court, D. Kansas

February 7, 2019

CLAYTON E. CONSER Plaintiff,
v.
BRONSON CAMPBELL and CITY OF VALLEY FALLS, KANSAS Defendants.

          ORDER CERTIFYING FACTS PURSUANT TO 28 U.S.C. § 636(E)(6)

          HONORABLE GWYNNE E. BIRZER U.S. MAGISTRATE JUDGE.

         This 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.

         Upon 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:

         I. Certification of Facts

         In 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.)

         Despite the uncontested nature of the motion, the undersigned briefly examined the Court's jurisdiction over Mr. Warren's request:

. . . 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 request.[1]
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. (Id.)

         On 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.)

         Upon 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.

         To 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. 59).

         II.

         Contempt Authority of United ...


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