Mischler v. Pence ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
AMY MISCHLER, )
)
Plaintiff, )
)
v. ) Civil Action No. 20-cv-1863 (TSC)
)
MIKE PENCE, Vice President of the United )
States, et al., )
)
)
Defendants. )
)
MEMORANDUM OPINION
Pro se Plaintiff Amy Mischler filed this lawsuit in 2020. Her claims appear to stem from
her dissatisfaction with, inter alia, an Executive Order relating to “Safe Policing,” federal court
rulings regarding Kentucky Medicare waivers associated with the Affordable Care Act, changes
in the Sixth Circuit Court of Appeal’s local rules, her apparent appearance on a Kentucky child
abuser list, as well as elder care decisions issued by courts in Florida and/or Kentucky. Plaintiff
alleges a vast conspiracy involving eleven Defendants, including former Vice President Michael
Pence, a former United States Ambassador, former Attorney General William Barr, the former
Chief Judge of the Sixth Circuit Court of Appeals, the Governor of Florida, a former Kentucky
Governor, two FBI agents and lawyer Christy Van Tatenhove, the latter of whom this court
dismissed from this action upon motion. ECF Nos. 26-27. The federal Defendants have now
moved to dismiss the claims against them. ECF No. 28. For the reasons set forth below, the
court will DISMISS the claims against the federal Defendants for failure to prosecute.
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A. BACKGROUND
In the fall of 2020, this court entered its standard pro se order advising Plaintiff of her
obligation to follow the Federal Rules of Civil Procedure, the court’s Local Civil Rules and
orders, including rules regarding service of process. The court warned Plaintiff that failure to do
so might result in sanctions, up to and including dismissal of this action. ECF No. 14. On
October 15, 2020, the court specifically reminded Plaintiff of her obligation to comply with
Local Civil Rule 7(c), which requires that “[e]ach motion . . . shall be accompanied by a
proposed order,” as well as Rule 7(m) which requires that movants confer with opposing counsel
prior to filing a non-dispositive motion and indicate whether the motion is opposed or
unopposed. 10/15/20 Min. Order. Sometime later, the court denied Plaintiff’s motion for
electronic filing privileges because she failed to comply with Local Civil Rule 5.4(b)(2), which
provides that a pro se party “may” obtain these privileges, with leave of court, upon a motion
that includes certain certifications regarding training and access to the internet. 8/16/21 Min.
Order.
The federal Defendants filed a Motion to Dismiss on July 23, 2021, ECF No. 28, and this
court ordered Plaintiff to respond by August 16, 2021, or the court might treat the motion as
conceded. ECF No. 29. Plaintiff then filed a timely motion asking for thirty additional days in
which to file her opposition. ECF No. 30. Although she did not provide a cogent reason why
she needed additional time, the court granted her motion and ordered her to file her opposition by
September 15, 2021. 8/24/21 Min. Order.
Two days after that deadline, the Clerk of the Court received three documents from
Plaintiff, none of which were responsive to Defendants’ motion. First, she submitted a “Notice
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of Intent to file [illegible] again Defendant Christy Trout.” ECF No. 31. Plaintiff contended that
she had obtained exhibits which established that Van Tatenhove’s “scheme was much greater
than Ms. Mischler [sic] case as the Complaint & Exhibits show.” Id. Plaintiff did not attach any
documents to the “Notice,” nor offer any arguments for reconsideration of the Van Tatenhove
dismissal. See id.
The second document was a “Motion for Extension of Time to [sic] allow for mail in,” in
which she asked for additional time to mail her opposition “because she [wa]s not allowed to
electronically file or email in her responsive pleading to the clerk.” ECF No. 32. Plaintiff did
not explain what circumstances might have prevented her from submitting the opposition at the
same time she filed this motion and the other two documents. See id. She did, however, admit
that she had not complied with the local rule requiring her to confer with opposing counsel to
determine if there was an objection to the motion because of “the time crunch between computer
disaster and her writing Complaint by hand from memory.” Id. She failed to explain why the
motion did not contain a proposed order as required by the local rules. See id.
The third document was a motion to amend the Complaint pursuant to Federal Rule of
Civil Procedure 15, in which Plaintiff contended that she was not required to seek leave to
amend, but had done so out of an abundance of caution. ECF No. 33. She cited no legal
authority supporting this argument, did not obtain the consent of opposing counsel, nor did she
attach a proposed order. See id. She did attach a handwritten proposed amended complaint, but
gave no indication as to how it differed from the original Complaint or how it might have
addressed the issues raised in Defendants’ motion to dismiss. See id. Both the federal
Defendants and Van Tatenhove objected. ECF Nos. 34, 35. The court denied the motion to
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amend, ordered Plaintiff to respond to the Defendants’ motion to dismiss by November 30, 2021,
and explained that absent extraordinary circumstances, the court would not entertain a request for
additional extensions because it had already granted numerous deadline extensions. ECF No. 36.
As it had previously done, the court reminded Plaintiff that if she failed to respond in a timely
fashion or failed to address the arguments raised in Defendants’ motion, the court might dismiss
her action without further notice. ECF No. 29.
On November 9, the order was returned to the Court as undeliverable. ECF No. 37.
Because it appeared that the order had been mailed to Plaintiff’s prior address, the court entered
a new order granting another extension of more than thirty days, thereby making Plaintiff’s
opposition due by December 15, 2021. 11/10/21 Min. Order. Once again, the court cautioned
that it would not entertain a motion for an extension, absent extraordinary circumstances. Id.
Five days after the deadline, the court received Plaintiff’s “Motion for an Extension of
Time to Allow Postal Service to Deliver Motion.” ECF No. 38. Plaintiff explained that because
she does not have electronic filing privileges and lives in Florida, she cannot drive to the
courthouse and therefore mailed the motion and opposition on the due date. Id. Plaintiff did not
explain what might have prevented her from mailing the pleading sufficiently ahead of the
deadline for it to arrive in a timely fashion. Additionally, Plaintiff admitted that she had not
“asked the other attorneys whether they oppose this simple procedural motion based on equity to
be on the same level field with electronic filing.” Id. Finally, Plaintiff did not address the
arguments the Defendants raised in their motion.
B. ANALYSIS
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“District courts have inherent power to dismiss a case . . . for a plaintiff’s failure to
prosecute or otherwise comply with a court order.” Angellino v. Royal Family Al-Saud, 688 F.3d
771, 775 (D.C. Cir. 2012) (quoting Peterson v. Archstone Cmtys. LLC, 637 F.3d 416, 418 (D.C.
Cir. 2011) (citing LCvR 83.23)). Pursuant to Local Civil Rule 83.23, “dismissal for failure to
prosecute may be ordered by the Court upon motion by an adverse party, or upon the Court’s
own motion.” LCvR 83.23. Similarly, Federal Rule of Civil Procedure 41(b) provides that “[i]f
the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.” Dismissal under Rule 41(b) “is proper if, in
view of the entire procedural history of the case, the litigant has not manifested reasonable
diligence in pursuing the cause.” Bomate v. Ford Motor Co., 761 F.2d 713, 714 (D.C. Cir.
1985). A Rule 41(b) dismissal is particularly permissible where “the plaintiff has been
previously warned that [s]he must act with more diligence, or if [s]he has failed to obey the rules
or court orders.” Smith-Bey v. Cripe, 852 F.2d 592, 594 (D.C. Cir. 1988) (cleaned up). As the
Court of Appeals has recognized, dismissal is appropriate “when lesser sanctions would not
serve the interest of justice.” Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C. Cir.
1990).
Applying these standards, the court finds dismissal appropriate here. Plaintiff has not
pointed to circumstances beyond her control that excuse her failure to timely respond to the
federal Defendants’ motion, filed almost four months ago, and lesser sanctions would not serve
the interests of justice. Despite receiving numerous reminders about her obligation to follow
procedural rules and court orders, Plaintiff repeatedly failed to meet her obligations and
repeatedly failed to provide sufficient justifications for doing so, even though the court warned
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her that she faced dismissal of this action if she continued down this path. Indeed, in her most
recent filing Plaintiff admits that she ignored the court’s deadline by placing her response in the
mail on the due date.
Although Plaintiff is not represented by counsel, she is not new to the federal courts or
the consequences of failing to comply with procedural rules and court orders. Indeed, after
repeated warnings, this court previously dismissed two of her lawsuits for failure to effectuate
service of process. See Mischler v. United States Dept. of Health and Human Services, 19-cv-
2493-TSC (DDC); Mischler v. Dept. of Justice, 19-cv-2937-TSC (DDC).
“The court’s authority to dismiss a case for failure to prosecute or failure to
follow the court’s orders is not discarded simply because a plaintiff is proceeding pro se.” Allen
v. United States, 277 F.R.D. 221, 223 (D.D.C. 2011). Plaintiff’s status as a pro se litigant “does
not constitute a license . . . to ignore the Federal Rules of Civil Procedure,” the court’s local
rules, and orders. See Moore v. Robbins, 24 F. Supp. 3d 88, 97 (D.D.C. 2014) (cleaned up). 1
1
Even if Plaintiff’s opposition had been timely, dismissal would have been appropriate
because she did not address any of arguments raised by the federal Defendants in their motion.
See Hopkins v. Women’s Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C.
2003) (treating as conceded those arguments defendant advanced in support of its motion that
plaintiff failed to address in the opposition) aff'd, 98 F. App’x. 8 (D.C. Cir. 2004) (citing FDIC
v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997)) (other citation omitted). Instead, her filing
contains close to seventy-five pages of corporate/financial documents, and her eight-page brief
discusses alleged criminal activity by certain defendants, a letter to the Chief Justice of the
United States Supreme Court, and Plaintiff’s concerns regarding certain individuals’ financial
disclosures.
Moreover, the nature of many claims in the Complaint are unclear. Federal Rule of Civil
Procedure 8(a) requires that a complaint contain “(1) a short and plain statement of the grounds
for the court's jurisdiction . . . [and] (2) a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1)-(2); see Ashcroft v. Iqbal, 556 U.S. 662,
678–79 (2009); Ciralsky v. CIA, 355 F.3d 661, 668–71 (D.C. Cir. 2004). The Rule 8 standard
ensures that defendants receive fair notice of the claim being asserted so that they can prepare a
responsive answer and an adequate defense and determine whether the doctrine of res judicata
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C. CONCLUSION
For the reasons set forth above, the court will DENY Plaintiff’s Motion for an extension
of the opposition deadline, ECF No. 38, and DISMISS the claims against the federal Defendants
for failure to prosecute.
Date: January 13, 2022
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
applies. Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977). Many of Plaintiff’s claims do not
meet this standard.
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