Petition for Writ of Certiorari — Johnson v. Potter

Supreme Court. U.S.

FILED

091368 MAY 11 2010

MSFIGE OF THE CLERK

IN THE

Supreme Court of the United States

ANITA JOHNSON,

Petitioner,

ae

JOHN E. POTTER,

POSTMASTER GENERAL OF THE UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Robert J. Wiley

ROB WILEY, P.C.

1825 Market Center Boulevard

Suite 385

Dallas, TX 75207

(214) 528-6500

rwiley@robwiley.com

*Counsel of Record

1)

1

QUESTIONS PRESENTED FOR

REVIEW

Whether it is within a district court’s

discretion to deny an _ unopposed

motion for continuance where a pro se

plaintiff suffers a real and documented

medical emergency on the eve of trial?

Whether failure to appear for trial

because of a medical emergency 1s

excusable neglect under the three-

factor test set forth in Pioneer Inv.

Serus. Co. v. Brunswick Assocs. Ltd.

P’ship for a Rule 60 motion for relief

from a judgment where the party has

not acted in bad faith or engaged in

dilatory practices.

BI

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR

REVIEW............ ye a sceccasenssess. l

TABLE OF CONTENTG.................:.sce000 il

TABLE OF AUTHORITIBG.................... v1

CPP ER MIE os... 555. 55ccccnscecesssssseees. 1

FT raiishcsoasccncosscoesssscscsces 2

CONSTITUTIONAL PROVISIONS,

STATUTES AND POLICIES AT

pe 3

STATEMENT OF THE CASE................. 4

A. Facts Giving Rise to the Case....... 4

}. Summary......... a 4

2. The Underlying Claim

for Disability

PpeeeTINAIALION.................... 5

3. Petitioner Diligently

Pursued her Claims in

SN oc ne cc seesesscessesssces. 6

ill

4. Petitioner’s Medical

Emergency Necessitated a

CORRE TIAITOD viv. 5c cnknsriacasoexsee

uw

Petitioner Sought Relief

from the Judgment............. 8

B. The District Court Proceedings.... 8

C. The Appellate Court

FP isikiscsccsteintbiennocsn 11

REASONS WHY CERTIORARI

SHOULD BE GRANTED. vvccscccsssscssnsscssnee 12

I. Denying an Unopposed

Continuance of a Trial to a

Pro Se Plaintiff who Suffered a

Documented Medical

Emergency is so Manifestly

Unjust as to Undermine

Confidence in the Judiciary.......... 12

II. The Fifth Circuit’s Approach

to Medical Continuances is in

Sharp Contrast with Other

CIR acini cepacia iacenennen 13

iit The Lack of a Clear Standard

for a Medical Continuance is

an Issue that has Gone

Unresolved for over Fifty Years... 16

IV.

1V

Review is Warranted to Ensure

Continued Compliance with this

Court’s Explicit Ruling in Pioneer

Investment Services Co. v.

Brunswick Associates L.P............- 17

re iii daccccacsssasassaeasvacsiecaucences 20

PAE Fi gasses tin dstionccereeannnny A-1

2

3.

Order denying appeal, Fifth

Circuit Court of Appeals, dated

PeDPuery 10, ZOOS. .c.cviccscccsevcescess A-2

. Order denying motion for relief

from the judgment, United

States District Court for the

Northern District of Texas,

dated June 19, 2009 .................... A-16

Final judgment, United States

District Court for the Northern

District of Texas, dated April

ee NS sie sec ucrsi cate eeanens teas A:25

. Order denying motion for

continuance, United States

District Court for the Northern

District of Texas, dated April

IS) a 5s tea eicaun a akocdaerer ts A-26

5. Motion for Extension of Time,

dated April 15, 2009................ A-28

V2

TABLE OF AUTHORITIES

CASES

Alford v. United States,

709 F.2d 418 (5th Cir. 1983)............. 15

Davis v. Operation Amigo, Inc.,

378 F.2d 101 (10th Cir. 1967)........... 13-14

Gaspar v. Kassm,

493 F.2d 964 (8d Cir. 1974)............... 14-15

Pioneer Investment Services Co. v.

Brunswick Associates L.P.,

RF ht te Oa ik scedccececesccsacccesces 17-19

Skinner v. Louisiana,

391 U.S. 963 (1968).......ccccccescsesseeeeeee. 16

Skinner v. Louisiana,

Pe OF Te CE oncciicscns senncriseses sells 16

Smith-Weik Machinery Corp. v.

Murdock Mach. & Engineering Co.,

423 F.2d 842 (5th Cir. 1970)............. LS

Ungar v. Sarafite,

Te RF, Te CEG iosscaiisiscerassaascciexeesvs 13

Vili

STATUTES

passim

FED. R. Crv. P. 60

1

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Fifth Circuit, filed

on February 10, 2010, is an unpublished case

reported at 2010 WL 454718, 2010 U.S. App.

LEXIS 2758, and 22 Am. Disabilities Cas.

(BNA) 1874. The opinion is reprinted in the

Appendix hereto, pp. A-2 — A-15.

The order of the United States District

Court for the Northern District of Texas filed

on June 19, 2009, denying a Fed. R. Civ. P.

60 motion for relief from the judgment is

reported at 2009 WL 2096211, 299 U.S. Dist.

LEXIS 64375. The order is reprinted in the

Appendix hereto, pp. A-16 — A-24.

The final judgment of the United

States District Court for the Northern

District of Texas filed on April 16, 2009 is

unreported. The order is reprinted in the

Appendix hereto, p. A-25.

The order of the United States District

Court for the Northern District of Texas filed

on April 16, 2009, denying the pro se motion

for continuance is unreported. The order 1s

reprinted in the Appendix hereto, pp. A-26 —

A-27.

JURISDICTION

On November 21, 2005, Petitioner

filed a pro se complaint against Respondent

in the United States District Court for the

Northern District of Texas, _ alleging

violations of the Rehabilitation Act. On

April 16, 2009, the court denied a motion for

continuance, called the case to tmal, and

entered a final judgment. A notice of appeal

was timely filed on May 15, 2009. On June

19, 2009, the court denied a Rule 60 motion

for relief from the judgment. A second notice

of appeal was timely filed.

On August 19, 2009, the Fifth Circuit

Court of Appeals consolidated the appeals.

On February 10, 2009, the appellate court

issued an opinion upholding the district

court's order.

The jurisdiction of this Court to review

the Judgment of the Fifth Circuit is invoked

under 29 U.S.C. § 1254(1).

3

CONSTITUTIONAL PROVISIONS,

STATUTES AND POLICIES AT ISSUE

The standard for granting a

continuance for a pro se party’s medical

incapacity in a civil case.

This standard is created = and

maintained by the judiciary itself.

Federal Rule of Civil Procedure 60(b):

Relief from Judgment or Order

(6) Grounds for Relief from a Final

Judgment, Order, or Proceeding.

On motion and just terms, the court may

relieve a party or its legal representative

from a final judgment, order, or proceeding

for the following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect;

(2) newly discovered evidence that, with

reasonable diligence. could not have been

discovered in time to move for a new tnal

under Rule 59(b);

(3) fraud (whether previously called

intrinsic or extrinsic), misrepresentation,

or misconduct by an opposing party;

.

ee

(4) the judgment is void;

(5) the judgment has been satisfied,

released, or discharged; it is based on an

earlier judgment that has been reversed

or vacated; or applying it prospectively 1s

no longer equitable; or

(6) any other reason that justifies relief

STATEMENT OF THE CASE

A. Facts Giving Rise T’o This Case

ie Summary

The issue before the Court arises from

a district court’s denial of an unopposed

motion for continuance filed by Petitioner, at

that time proceeding as pro se plaintiff. The

motion for continuance was filed because

Petitioner suffered a real and documented

medical emergency. Petitioner’s motion

explicitly asked that the trial be postponed

and included a supporting statement from

Petitioner’s medical doctor, documenting a

medical emergency. The district court

denied the continuance, called the case to

trial, and entered a judgment against

Petitioner. Subsequently, Petitioner

o

obtained counsel and filed a Rule 60(b)

motion for relief from the judgment. The

motion was denied.

2. The Underlying Claim for

Disability Discrimination

The underlying complaint presents a

Rehabilitation Act claim of employment

discrimination on the basis of disability.

Petitioner, a United States postal worker,

suffers from Reflex Sympathetic Dystrophy

(“RSD”). RSD is a neurological disease that

causes the autonomic nervous system to

malfunction. Petitioner’s nerves misfire,

causing pain signals to be sent to the brain.

Although Petitioner manages this pain, she

sometimes suffers flare-ups in which the

pain is overwhelming and debilitating.

Petitioner seeks to succeed in life

despite her disability. This is evidenced by

her desire to work as well as her efforts to

litigate this case. However, Petitioner has

nowhere near the functionality of a healthy

citizen, and is unable to do ordinary tasks

like cooking or driving. Even simple tasks

lhke grooming pose great difficulty.

6

3. Petitioner Diligently Pursued

Her Claims in Litigation

After Petitioner was terminated from

her employment, she filed a pro se complaint

in federal court. From the start, Petitioner

aggressively pursued her claims. Petitioner

submitted a two hundred page, detailed

response to a questionnaire issued by the

magistrate judge.

Petitioner’s claim is not frivolous.

Petitioner survived a motion to dismiss at

the onset of the case, as well as a motion for

Summary judgment following discovery.

Petitioner was finally able to retain

counsel, whom she paid $5,000 and promised

an additional 40% contingency fee.

Petitioner’s original counsel negotiated a

settlement of $20,000 and promised the

Defendant (and the court) that Petitioner

would accept. The settlement did not restore

Petitioner to her position and left Petitioner

with a scant $7,000 after attorney fees.

Petitioner refused to accept the settlement.

Counsel then sought to withdraw. Petitioner

filed a motion for continuance to find

replacement counsel.

The motion to withdraw was filed on

March 30, 2009 and granted on April 2,

2009. Also on April 2, 2009, the court set

trial for April 16, 2009. (Both the Fifth

Circuit and the trial court consider this act of

setting a trial date as granting a

continuance, the only continuance granted

for Petitioner’s benefit in this case.)

Although no longer having counsel,

Petitioner timely filed pretrial disclosures on

April 9, 2009. Petitioner planned to try the

case herself.

4. Petitioner's Medical Emergency

Necessitated a Continuance

On Apml 14-15, 2009 Petitioner was in

pain throughout the night. The next

morning she called her physician who told

her to go to the emergency room. Petitioner

went to the emergency room where an x-ray

was performed. Unfortunately, the x-ray

technician grabbed Petitioner’s arm, which

made the situation even worse.

Upon discharge from the Baylor

University Medical Center, Petitioner was

given prescriptions for both Lortab and

Phenergan. Side effects of these medications

include dizziness, drowsiness, constipation,

nausea, vomiting, dry mouth, and muscle

spasms. Petitioner then proceeded _ to

immediately file a continuance with the

court because of her lack of capacity on this

occasion.

Although simple and hand written,

the motion clearly sets forth that Petitioner

has suffered a medical emergency

8

incapacitating her, asks for a continuance,

and attaches a note from her medical doctor

verifying Petitioner’s medical inability to

proceed to trial. The motion was filed with

the clerk of the court April 15, 2009.

The Defendant did not oppose the

continuance.

The district court denied the

unopposed, pro se motion for continuance,

called the case to trial, and rendered a

judgment denying Petitioner any and all

relief.

5. Petitioner Sought Relief From

the Judgment

Petitioner retained new counsel and

filed a Rule 60 motion for relief from the

judgment, which was denied.

B. The District Court Proceedings

On November 21, 2005, Petitioner

filed a pro se complaint against Respondent

for disability discrimination in _ her

employment as a postal worker. Petitioner

complained that she was adversely treated

and terminated because of her Reflex

Sympathetic Dystrophy (“RSD”), a nerve

disorder that renders her left arm useless

and can also cause flare ups of incapacitating

pain.

9

On March 24, 2006, the district court

granted Petitioner’s motion for leave to

proceed in forma pauperis.

On November 13, 2006, Respondent

hled a motion to dismiss.

On April 16, 2007, Respondent’s

motion to dismiss was denied.

On May 11, 2007, Respondent filed its

answer.

On December 13, 2007, the case was

reassigned to the Honorable United States

District Court Judge Reed C. O’Connor.

On March 27, 2008, the district court

issued an order requiring a_ scheduling

conference and report.

On April 23, 2008, attorney Rebecca L.

Fisher filed a notice of appearance of counsel,

representing Petitioner.

On April 28, 2008, the district court

entered its scheduling order.

On December 3, 2008, Respondent

filed its motion for summary judgment.

On January 12, 2008, Ms. Fisher filed

a motion to extend deadlines based on Ms.

Fisher’s medical conditions.

On March 12, 2009, the district court

denied Respondent’s motion for summary

judgment.

On March 13, 2009, Ms. Fisher

incorrectly notified the court that a

settlement had been reached.

10

On March 30, 2009, Ms. Fisher filed a

motion to withdraw as Petitioner’s attorney.

On March 30, 2009, Petitioner herself

filed a motion for an extension of time to find

an attorney.

On April 2, 2009, the district court

granted Ms. Fisher’s motion to withdraw and

set the case for trial on April 16, 2009,

fourteen days later. 7

On Apmnl 9, 2009, Petitioner, now

representing herself pro se, timely filed

pretrial disclosures with the court.

On April 15, 2009, Petitioner filed a

letter with the court, explaining that she had

a medical emergency. The letter asked for

an extension of time. The clerk entered the

letter in the court’s electronic filing system

as a “Motion for Extension of Time.”

On April 16, 2009, the district court

called the case to trial. Respondent

confirmed that they were unopposed to

Petitioner’s motion for an extension of time.

Nevertheless, the district court denied the

motion from the bench and called the case to

trial. The district court then made findings

of fact and conclusions of law that Petitoner

failed to appear and entered a final

judgment.

On May 15, 2009, the undersigned

counsel made an entry of appearance and

filed a Rule 60 motion for relief from the

judgment.

11

On June 19, 2009, the district court

denied the Rule 60 motion.

C. The Appellate Court Proceedings

On May 15, 2009, Petitioner filed a

notice of appeal of the denial of the motion

for continuance and the judgment.

On August 10, 2009, Petitioner filed a

notice of appeal of the denial of the Rule 60

motion.

On August 19, 2009, the court

consohdated the appeals.

On August 26, 2009, Petitioner filed

her principle brief.

Ironically, Respondent requested and

received a thirty-day continuance resetting

the deadline to respond.

On October 27, 2009, Respondent filed

his response brief.

On November 13, 2009, Petitioner

filed her reply brief.

Despite Petitioner’s request, oral

argument was not granted.

12

On February 10, 2010, the appellate

court issued its decision.

REASONS WHY CERTIORARI SHOULD

BE GRANTED

ie

Denying an Unopposed Continuance of

a Trial to a Pro Se Piaintiff who

Suffered a Documented Medical

Emergency is so Manifestly Unjust as to

Undermine Confidence in the Judiciary

The very idea that a pro se plaintiff

can lose her case merely because she suffers

a real and documented medical emergency is

offensive, unconscionable, and ridiculous. It

is difficult to imagine a situation in which a

continuance should more readily be granted.

When a pro se plaintitf becomes

seriously ill, she cannot act in her role as a

litigant, as a witness, or as her own attorney.

A lawsuit should be an intellectual

challenge, not a _ physical one. Justice

dictates that lawsuits be decided on merit.

Instead of winning or losing on merit,

Petitioner lost because she suffered a

medical emergency.

13

II.

The Fifth Circuit’s Approach to Medical

Continuances is in Sharp Contrast with

Other Circuits

The Fifth Circuit’s draconian defense

of the nearly unfettered discretion of a trial

court to deny a continuance is in sharp

contrast to other circuits. Nearly every other

circuit holds medical continuances to be

customary and has adopted safeguards or

standards to prevent injustice.

This Court has held that “{[A] myopic

insistence upon expeditiousness in the face of

a justifiable request for delay” is an abuse of

discretion. Ungar v. Sarafite, 376 U.S. 575,

589, 84 S.Ct. 841, 849-50, 11 L.Ed. 921

(1964). This standard, however, is vague

and does not provide district or appellate

courts with specific guidance.

In the Tenth Circuit, a severe ulness

that prevents the litigant from appearing in

court requires a continuance. See Davis v.

Operation Amigo, Inc., 378 F.2d 101, 108

(10th Cir. 1967). “Even when the judge has

doubts about the existence of the claimed

lllness, the movant should be afforded an

opportunity to substantiate his claim by

proper proof.” Jd.

The Third Circuit has similarly found

an abuse of discretion exists where a district

court denies a motion fcr continuance

14

because of the illness of a party. Gaspar v.

Kassm, 493 F.2d 964, 969 (3d Cir. 1974).

The Third Circuit ruled that a

continuance must be granted for the illness

of a necessary party, unless the delay is

prejudicial to the opposing party or

motivated by procrastination, bad planning,

or bad faith:

[W]e are aware of the

annoyance caused to a tnial

judge when his. carefully

arranged trial calendar is

disarranged, but we cannot let

this obscure the fact that we

doom the grounds upon which

the distinguished district judge

acted were insufficient. We do

not consider the motion for

continuance to be deficient on

its face. It is customary to grant

a continuance on the ground of

ulness of a party. We conclude

that Kassm’s testimony was

necessary for the defense of his

case, that the granting of a

continuance would not have

unduly prejudiced the other

parties, and that the

continuance motion was not

motivated by procrastination,

bad planning or bad faith on the

part of Kassm or his counsel. It

15

is the law that where none of

the foregoing appear, the denial

of a continuance for iliness is

abuse of discretion.

Td.

Clearly, Petitioner would not have

faced the same result had her case arisen in

the Third or Tenth Circuits.

The standards of the Third and Tenth

Circuits are stark contrast to the Fifth

Circuit’s position that discretion to deny a

continuance is basically unfettered and that

a trial court’s decision will not be disturbed. !

A ruling in this case could offer clarity,

guidance, and uniformity.

1 The Fifth Circuit has not always held such a

staunch position. In Smith-Weik Machinery Corp. uv.

Murdock Mach. & Engineering Co., the Fifth Circuit

characterized a medical continuance as an exception

to the general rule of discretion. 423 F.2d 842, 844-45

(5th Cir. 1970). In Alford v. United States, the Fifth

Circuit set forth factors to be considered. 709 F.2d

418, 424 (5th Cir. 1983). However, as the panel

explains in the instant case, subsequent Fifth Circuit

cases have set forth nothing more than a broad abuse

of discretion standard. App. A-7, n. 1. The panel

refused to lower the abuse of discretion standard. Nor

does the panel apply or evaluate any of the factors set

forth in Alford.

16

Ill.

The Lack of a Clear Standard fora

Medical Continuance is an Issue that

has Gone Unresolved for over Fifty

Years

This Court previously granted

certiorari to resolve nearly the same issue as

presented in this case, but where a party was

represented by counsel. See Skinner uv.

Louisiana, 391 U.S. 963, 88 S.Ct. 2031, 20

L.Ed.2d 876 (1968). However, the writ was

subsequently dismissed. 393 U.S. 473, 89

S.Ct. 704, 21 L.Ed. 684 (1969). In Skinner,

an attorney with severe diabetes was forced

to continue trying the case even after it

became apparent that he was suffering

exhaustion. Three justices dissented to the

dismissal, with Justice Marshall writing a

reasoned dissent.

Granting a writ of certiorari in this

case would allow the Court to finally address

an issue that still divides the circuits over

fifty years later.

This disparity is particularly acute as

multi-state practices have become more

common. Differing standards for routine

matters, such as continuances, requires

expending significant resources on

procedural matters, instead of focusing on

the merits of a case.

17

IV.

Review is Warranted to Ensure

Continued Compliance with this Court’s

Explicit Ruling in Pioneer Investment

Services Co. v. Brunswick Associates L.P.

In her Rule 60(b) motion, Petitioner

asked the trial court for relief from the

judgment based on _ inadvertence’ § and

excusable neglect. This Court squarely

addressed the standard for review of such a

motion in Pioneer Investment Services Co. v.

Brunswick Associates L.P., 507 U.S. 380,

395, 113 S.Ct. 1989, 1498, 123 L.Ed.2d 74

(1993). This Court established three factors

that must be considered: (1) prejudice to the

opposing party, (2) length of delay, and (3)

reason for the delay in determining whether

Plaintiffs failure to appear was excusable

and made in good faith. Id.

The district court's analysis. is

contained on pages 3 and 4 of its order.

(App. A-19 — A-23.) Although the order

correctly identifies Pioneer Investment as the

controlling authority. at no point does the

district court actually evaluate these three

factors. This Court has an interest in

ensuring that its decisions are followed.

The district and appellate courts do

not address the issue of prejudice to the

opposing party. If the court had, it might

18

have noted that the Respondent was

unopposed to the motion.

The district and appellate courts do

not address the length of delay. Petitioner

indicated that she would be ready for trial as

early on June 15, 2009, among other dates.

This is only two months after the scheduled

trial date, and days after the Rule 60(b)

motion was filed.

The district and appellate courts do

not address the reason for the delay. On

pages 3 and 4 of the district court’s order

where the district conducts its analysis, the

court does not mention Petitioner’s KSD,

Petitioner’s medica] condition, or the note

and affidavit from Petitioner's medical

doctor. The language of pages 3 and 4 of the

district court’s order intentionally omit any

reference to the fact that Petitioner was

medically incapacitated. Similarly, the

appellate court does not consider Petitioner’s

medical emergency to factor into an

evaluation of the third Pioneer Investment

factor.

Simply stated, the appellate court’s

analysis renders Pioneer Investment a

nullity.

Instead, the Fifth Circuit finds that

“While the court did not provide specific

details on the first or second factors, it

emphasized the third factor, finding that

Johnson had consistently disregarded its

19

orders and notices and that Johnson’s failure

to appear at trial was not an _ isolated

incident.” (App. A-14.) However, the record

shows that the only other “incident” was that

Petitioner did not attend the tmal court’s

April 2, 2009 hearing in person. ‘The record

contains no order for Petitioner to appear at

the hearing, nor is there any record of

anything in writing being sent to Petitioner

to notify her that she should appear im

person.’ Importantly, Petitioner was

represented by counsel at the time who did

appear at the hearing. There is absolutely

no other violation of any order or notice, and

Petitioner consistently made thorough

filings, timely responses to discovery, and

otherwise diligently complted with all rules

and directives.

To hold that such a _ single,

insignificant act can justify applying the

factors of Pioneer Investment deprives

hitigants in the Fifth Circuit of this Court’s

jurisprudence.

* The record reflects a statement by the trial judge

that he had asked his staff to verbally notify

Petitioner of the hearing. The trial judge tried to

telephone Petitioner at the hearing but the phone was

not answered.

20

CONCLUSION

Based on the foregoing, Petitioner

respectfully submits that this Petition for

Writ of Certiorari should be granted. ‘The

Court may wish to consider summary

reversal of the decision of the Fifth Circuit

Court of Appeals.

Dated: May 10, 2010

Respectfully submitted,

Robert J. Wiley

ROB WILEY, P.C.

1825 Market Center

Blvd., Ste. 385

Dallas, TX 75207

(214) 528-6500

rwiley@robwiley.com

APPENDIX

ee)

A-1

INDEX TO THE APPENDIX

. Order denying appeal, Fifth

Circuit Court of Appeals, dated

February 10, 2009.......................

. Order denying motion for relief

from the judgment, United

States District Court for the

Northern District of Texas,

dated June 19, 2009....................

. Final judgment, United States

District Court for the Northern

District of Texas, dated April

Te, aca ee eee

Order denying motion for

continuance, United States

District Court for the Northern

District of Texas, dated April

DG, Be cessscbecicase cuaecgduscuuenens

Motion for Extension of Time,

dated April 15, 2009..............-.

A-2

A-16

A-25

A-28

A-2

IN THE UNITED STATES COURT OF

APPEALS

FOR THE FIFTH CIRCUIT

Nos. 09-10528

Summary Calendar

Cons w/09-10782

ANITA JOHNSON,

Plaintiff-Appellant

v.

JOHN E. POTTER, Postmaster General,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:05-CV-2287

Before BENAVIDES, PRADO, and

SOUTHWICK, Circuit Judges

PER CURIAM:

Appellant Anita Johnson — sued

Appellee John E. Potter, Postmaster

General, and the United States Postal

Service (the “USPS”), for — disability

discrimination related to her Reflex

Sympathetic Dystrophy (“RSD”), a disorder

of the autonomic nervous system. On the

morning the trial was scheduled to begin, the

district court received Johnson's motion to

continue the trial. The district court denied

the motion and proceeded with the trial.

Later, the district court denied Johnson's

motion for relief from judgment under

Federal Rule of Civil Procedure 60(b). On

appeal, Johnson argues that the district

court abused its discretion in denying her

motions. Because we find that the district

court did not abuse its discretion, we

AFFIRM.

I. BACKGROUND

Originally, the district court set this

case for trial on March 2, 2009. Johnson's

* Pursuant to Fifth Circuit Rule 47.5, we have

determined that this opinion should not be published

and is not precedent except under the limited

circumstances set forth in Fifth Circuit Rule 47.5.

A-4

attorney filed a motion to continue, and the

district court continued the trial until March

23, 2009. Johnson made a settlement offer,

which the USPS accepted on March 16, 2009.

However, Johnson and her attorney

apparently had a falling out. Johnson

withdrew from the settlement and refused to

communicate with her attorney. On March

30, 2009, Johnson filed a motion for

extension of time to find new counsel.

Johnson's attorney filed a motion to

withdraw as counsel.

The district court set a hearing on

both motions on April 2, 2009. In its

scheduling order, the district court explicitly

ordered Johnson to attend the hearing. As

per Johnson's prior instructions, the district

court contacted Johnson at two separate

telephone numbers to inform her of the

hearing. However, Johnson did not attend.

At the hearing, the district court granted the

motion to withdraw and rescheduled the

trial date for April 16, 2009.

On April 15, 2009, Johnson filed a

document explaining that her RSD had

flared up, and requesting time to convalesce

and retain new counsel. Attached to the

document was a fax from her doctor which

stated:

Anita Johnson currently

remains 100 percent totally

disabled and will reraain [n [sic]

A-5

this capacity until further

notice. The patient is precluded

from even’ menial/sedentary

type tasks secondary to pain

sufficient to distract the

concentration level, as well as

inability to remain In [sic] one

position for any _ substantial

length of time.... In summary,

this patient is unable _ to

perform any type of duties on a

regular basis and therefore is

not competent to represent

herself in court.

The court did not receive’ the

document until the morning of April 16,

2009. At no time prior to filing the document

did Johnson make any effort to contact the

court or the USPS to notify them that she

would be unable to attend the trial.

After reviewing the note from

Johnson's doctor, the district court observed

that the note seemed to describe Johnson's

chronic underlying condition rather than an

acute flare-up, and did not give specific

reasons why Johnson was unable to attend

the trial on that day. Further, the district

court stated that the note did not say when,

if ever, Johnson would be available for trial

in the future.

A-6

The court declined to postpone the

trial, explaining that postponement would

require either setting an artificial trial date

without knowing whether Johnson would be

able to attend, or postponing the trial

indefinitely until Johnson told the court

when she would be able to attend; that the

court had already postponed the trial once at

Johnson's request; that Johnson had already

missed a hearing which the court had

specifically ordered her to attend; that the

parties had been prepared to settle the case

until Johnson backed out at the last minute;

that the case was not complex and that

Johnson seemed able to represent herself;

and that the court had a congested docket,

and the case was more than three years old.

The court proceeded with the trial.

Because Johnson was not present, the court

entered judgment in favor of the USPS and

dismissed the case. Johnson filed a Rule

60(b) motion for relief from judgment. The

court denied the motion, explaining that

Johnson had consistently disregarded the

court's orders and that Johnson's failure to

attend trial was not an isolated incident.

Johnson timely appealed.

Il. ANALYSIS

We have jurisdiction under 28 U.S.C. § 1291.

A-7

A. Johnson's Motion to Continue the

Trial

We review the district court's denial of

a motion to continue for abuse of discretion.

Johnston v. Harris County Flood Control

Dist., 869 F.2d 1565, 1570 (5th Cir.1989);

Fontenot v. Upjohn Co., 780 F.2d 1190, 1193

(5th Cir.1986).? The district court's

discretion is “exceedingly wide.” Fontenot,

780 F.2d_at 1193.

In Command-Aire Corp. v. Ontario

Mechanical Sales and Service Inc., Ontario

Mechanical Sales (“OMS”) sought and

1 Johnson cites Smith-Weitk Machinery Corp. v.

Murdock Machine and Engineering Co., arguing that

we should apply a less deferential standard because

“{faln exception ... exists in certain cases when the

illness of counse} is the ground for a continuance.” 423

F.2d 842, 845 (5th Cir.1970). We have consistently

held that Smith-Weik explores a facet of the abuse of

discretion standard rather than articulating a

different standard for cases involving an attorney's

illness, See, e.g., Charles v. Rice, No. 93-8062, 1993

WL 307892, at * 3 (5th Cir. Aug.6, 1993) (citing

Smith-Weitk in applying the abuse of discretion

standard); Childers v. Pumping Sys., inc., Y68 F.2d

565, 572 (5th Cir.1992) (citing Smith-Weik for the

proposition that motions to continue should be

reviewed under an abuse of discretion standard);

McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074

(5th Cir.1970) (noting that Smith-Weik applies an

abuse of discretion standard). Accordingly, we apply

an abuse of discretion standard in this case.

A-8

received three continuances. after its

president was hospitalized for psychiatric

reasons. 963 F.2d °°, 93 (5th Cir.1992). On

the day of trial, OMS sought a fourth

continuance, submitting a doctor's note that

said its president was again unavailable. Id.

The district court denied the continuance

and proceeded to trial. Jd. We affirmed the

district court's ruling. fd. at 96. In doing so,

we noted that OMS sought a continuance

“solely on the basis of a letter from a doctor

advising the president of OMS not to leave

[his home] until further notice,” and that

“[t]he letter contained no suggestion of when

or if the [president] would be available for

trial.” Id. We stated that “[a} trial court is

not required to delay a case indefinitely

based on the incapacity of a witness

especially where, as here, it 1s unknown

when or if the witness will ever be available

to appear.” /d. Accordingly, we “decline[d] to

substitute our judgment about the necessity

and propriety of a continuance for that of the

district court.” Jd.

In Johnston, defendant Harris County

Flood District (“HCFD”) requested a

continuance fifteen days before trial on the

ground that Jordan, one of the individual

defendants, had suffered a heart attack. 869

F.2d at 1570. The court denied the motion.

Id. On the first day of trial, HCFD again

requested a continuance, presenting the

A-9

court with a letter from Jordan's physician

saying that postponing the trial for one

month would be beneficial to Jordan's

health. Id. The court denied the motion, in

part because the physician did not know

when Jordan would be able to testify. Jd.

Although the court began the trial without

Jordan, the court held open the evidence

until Jordan could testify. Jd.

In affirming the district court's ruling,

we stated that “[t]he grant or denial of a

continuance is within the sound discretion of

the trial court ... [and we] will reverse the

denial of a continuance ‘only when the action

is, to use the conventional term, an abuse of

discretion.’ “ Id. (quoting Fontenot, 780 F.2d

at 1193) (internal quotation marks omitted).

We found that the defendants suffered little

Or no prejudice because the remaining

defendants could assist HCFD's counsel in

cross-examination and _ rebuttal, because

continuing would have resulting in a delay of

about six months, and because the court

made significant efforts to accommodate

Jordan by holding open the evidence until he

could testify. Jd. at 1570-71.

In Smith-Weik, principai couse} for

defendant Murdock became ill with the flu.

423 F.2d at 843 n. 1. Principal counsel

notified local counsel, as well as local and

principal counsel for Smith-Weik. Jd. The

case was number seventeen on the district

A-10

court's non-jury docket for February 10,

1969. Because the case was low on the

district court's docket, counsel felt confident

it would not be called on February 10. Jd.

However, the district court granted Smith-

Weik's untimely demand for jury trial over

Murdock's objection, placing the case fourth

on the court's jury docket. Jd. This change

had the practical effect of unexpectedly

advancing the trial date for the case. /d.

Murdock advised the court’ that

principal counsel was sick and that Murdock

would need time for his witnesses, who lived

outside the area, to trave) to the courthouse.

Id. The court moved on to other matters, and

Murdock believed the trial would not start

before February 17 at the earliest. Id.

However, on February 13, Murdock's local

counsel was called to the courthouse and told

that the trial would begin in four hours. Id.

Local counsel moved to continue the trial

until February 17, explaining that he was

not adequately prepared to try the case

without principal counsel. Jd. The court

denied the motion, stating that the plaintiffs

and their counsel had been in town awaiting

trial since February 10. Id. Murdock's local

counsel moved for a continuance until the

next morning so he could fly to Tulsa to

confer with principal counsel. Jd. The court

denied the motion, and the case proceeded to

trial. Id. After the trial, the jury returned a

A-11

verdict for Smith-Weik. Jd. On appeal, we

concluded that the district court had abused

its discretion, and we reversed. Id. at 844-45.

The instant case is analogous to both

Command-Aire Corp. and Johnston. Johnson

sought a continuance solely on the basis of a

letter from her doctor, and the letter gave no

indication when, if ever, Johnson would be

available for trial. If the district court had

not denied the motion, it might have waited

indefinitely for Johnson to be ready for trial.

Also like in both Command-Aire Corp. and

Johnston, here the district court had already

continued the trial to accommodate Johnson.

In contrast, this case is

distinguishable from Smith-Weik for several

reasons. First, in Smith-Weik Murdock asked

the district court to continue the trial for a

short time-one week-so that principal

counsel could recover from the flu, a

condition which almost always disappears in

a matter of days. In the instant case, the

note supplied by Johnson's doctor does not

say that she will ever be well enough to

attend trial. Further, there is no indication

that the district court in Smith-Weik had

previously continued the tria! at Murdock's

request. In fact, the district court effectively

advanced the trial date when it moved the

case from its non-jury docket to its jury

docket and assigned the case a high number.

In contrast, in the instant case Johnson

A-12

already caused the trial to be continued

twice, once when her attorney was ill and

once when Johnson withdrew from the

settlement. Further, the district court never

advanced the trial date.

Of course, there is no question that

the district court's ruling in this case was

much more prejudicial than the district

court's ruling in either Command-Aire Corp.

or Johnston. In those cases, attorneys were

able to present their cases despite the

absence of additional counsel or parties who,

while certainly important, were not integral

to the litigation's ongoing viability. In stark

contrast, here Johnson was proceeding pro se

when the district court denied her motion to

continue. Thus, the denial was tantamount

to a default judgment.

Although the district court's denial

was obviously extremely prejudicial to

Johnson, we cannot say that the district

court acted outside its “exceedingly wide”

discretion when it denied Johnson's motion

to continue. Fontenot, 780 F.2d at 1193.

Given the complicated history of this case,

we “decline to substitute our judgment about

the necessity and propriety of a continuance

for that of the district court.” Command-Atre

Corp., 963 F.2d at 96.

A-13

B. Johnson's Rule 60(b) Motion for Relief

fror Judgment

We review the district court's denial of

a Rule 60(b) motion for abuse of discretion.

First Nationwide Bank v. Summer Hous.

Joint Venture, 902 F.2d 1197, 1200-01 (5th

Cir.1990). “In reviewing a denial of a Rule

60(b) motion, ‘ijt is not enough that the

granting of rehef might have _ been

permissible, or even warranted, denial must

have been so unwarranted as to constitute

an abuse of discretion. “ TJId. at

1201l(emphasis in original) (alteration in

original) (quoting Huff v. Int'l

Longshoremen's Ass'n, Local # 24, 799 F.2d

1087, 1091 (5th Cir.1986)) (quotation

omitted).

Rule 60(b) states, in pertinent part:

(b) Grounds for Relief from a _ Final

Judgment, Order, or Proceeding. On motion

and just terms, the court may relieve a party

or its legal representative from a final

judgment, order, or proceeding for the

following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect;

(4) the judgment is void;

A-14

(6) any other reason that justifies relief.

In the district court, Johnson moved

for relief from judgment under Rule 60(b)(1),

(4), end (6). On appeal, Johnson focuses only

on the “excusable neglect” aspect of Rule

60(b)(1). Accordingly, we address only that

aspect.

When determining whether there has

been excusable neglect, we review “all

relevant circumstances surrounding the

party's omission .” Pioneer Inv. Servs. Co. v.

Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,

395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1998).

These circumstances might include (1) “the

danger of prejudice to the [non-movant],” (2)

“the length of the delay and its potential

impact on judicial proceedings,” and (3) “the

reason for the delay, including whether it

was within the reasonable control of the

movant, and whether the movant acted in

good faith.” Jd.

Johnson argues that the district court

abused its discretion because it did not

sufficiently analyze all three of the factors

described in Pioneer’ Investment. We

disagree. While the court did not provide

specific details on the first or second factors,

it emphasized the third factor, finding that

Johnson had consistently disregarded its

orders and notices and that Johnson's failure

to appear at trial was not an _ isolated

A-15

incident. The district court implicitly

determined that to the extent the first and

second factors militated in favor of granting

the motion (if at all), they were outweighed

by the third factor. Certainly, we cannot say

that the district court failed to consider “all

relevant circumstances surrounding

[Johnson's] omission,” id., or that the district

court's decision was “so unwarranted as to

constitute an abuse of discretion.” Huff, 799

F.2d at 1091(emphasis omitted).

II. CONCLUSION

The district court did not abuse its

discretion in denying Johnson's motion to

continue the trial or her Rule 60(b) motion

for relief from judgment. Thus, we AFFIRM.

A-16

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANITA JOHNSON,

Plaintiff,

v. No. 3:05cv2287

JOHN POTTER,

Postmaster General,

United States Postal

Service,

Defendant.

ORDER

Before the Court is Plaintiffs Rule 60

Motion for Relief from Judgment (Doc. No.

81), filed May 15, 2009, Defendant’s

Response (Doc. No. 85), filed May 26, 2009,

and Plaintiff's Reply thereto (Doc. No. 87),

filed June 1, 2009. Having reviewed the

Motion, the docket and history of this case,

and considered the applicable law, the Court

finds that Plaintiffs Motion should be and

hereby is DENIED.

Additionally, Defendant filed a Motion

to Strike Reply Evidence (Doc. Noa. 89), filed

on June 2, 2009, and Plaintiff filed a Motion

for Leave to File Supplemental Declaration

(Doc. No. 91) on June 3, 2009. The Court did

A-17

not consider the materials which are the

subject of the respective motions in resolving

Plaintiffs Motion for Relief (Doc. No. 81).

Thus the Court finds that these motions

should be and hereby are DENIED as

MOOT.

Plaintiffs Arguments

Plaintiff argues that the Court should

set aside its Judgment in this case based on

the reasons for relief set forth in Rule 60(b)

of the Federal Rules of Civil Procedure. First,

Plaintiff argues that she has sufficiently

shown inadvertence and excusable neglect .

Pl’s Mtn. at 3-5; see FED. R. CIV. PRO.

60(b){1). Second, Plaintiff argues that the

Court’s judgment in favor of Defendant in

this case is void because it 1s inconsistent

with due process of Jaw. Pli’s Mtn. at 5- 6; see

FED. R. CIV. PRO. 60(b)(4). Finally, Plaintiff

argues in the alternative that the catchall

provision of Rule 60 provide relief due to

exceptional circumstances. Pl’s Mtn. at 6; see

FED. R. CIV. PRO. 60(b)(6).

Defendant’s Response

Defendant first objects to Piaintift’s

Motion on jurisdictional grounds, contending

that the Court is without jurisdiction to

grant the motion because Plaintiff has filed a

notice of appeal with the Court of Appeals for

the Fifth Circuit. Def. Rsp. at 7-9. Arguing in

A-18

the alternative, Defendant then contends

that Plaintiffs motion should be denied for

failing to establish the requirements of Rule

60(b) for relief from judgment. See generally,

Def. Rsp.

Legal Standard

Federal Rules of Civil Procedure Rule

60(b) allows a court to provide relief to a

party from a prior ruling or judgment for the

several reasons, among which include:

(1) mistake, inadvertence,

surprise, or excusable neglect; .. .

(4) the judgment is void; .. .

(6) any other reason that

justifies relief.

FED. R. CIV. PRO. 60(b). This rule

allows a trial court to reopen a case and to

“reconsider such matters so that [the court]

can correct obvious errors or injustices. . .”

Fackelman v. Bell, 564 F.2d 734, 735-736

(5th Cir. 1977). “(W]here the reopening of a

judgment could unfairly prejudice the

opposing party,” courts weigh against

granting such motions. Jd. Additionally,

courts should consider whether’ the

“desirabuity of orderliness and predictability

in the judicial process” when entertaining

the reopening of judgments. Jd.

A-19

Discussion

The Court first considers Defendant’s

jurisdictional arguments. In denying

Plaintiffs motion, the Court acts within its

jurisdiction, albeit limited, because the

denial is in furtherance of Plaintiffs appeal

before the Fifth Circuit. Travelers Ins. Co. v.

Liljeberg Enters., 38 F.3d 1404, 1407 n. 3

(5th Cir. 1994) (quoting Willie v. Continental

Oil Co., 746 F.2d 1041, 1046 (5th Cir. 1984),

vacated, 760 F.2d 87 (5th Cir. 1985), rev'd on

other grounds, 784 F.2d 706 (5th Cir. 1986)

(en banc)).

With respect to Plaintiffs first

argument, the Court looks to the factors set

forth in Pioneer Investment Services Co. v.

Brunswick Associates L.P., 507 U.S. 380, 395

(1993), specifically, prejudice to the opposing

party, length of the delay, and reason for the

delay in determining whether Plaintiff's

failure to attend trial was excusable and was

made in_- good faith. The Court’s

determination on this point “is at bottom an

equitable one, taking account of all relevant

circumstances surrounding” Plaintiff's

conduct in this case. Pioneer, 5U7 U.S. at 3S5

see also, Union Pac. R.R. v. Progress Rail

Serv's., 256 F.3d 781, 782 (8th Cir. 2001).

In considering all relevant

circumstances in this case, the Court does

not “focus narrowly” on Plaintiffs failure to

A-20

attend trial, nor does the Court only ask

whether her failure was “in some sense

excusable.” Union Pac. R.R., 256 F.3d at 782.

In so doing, the Court notes a pattern

of disregard by Plaintiff for its orders and

notices, and does not find that Plaintiff's

failure to attend triai was an _ isolated

incident of inadvertence. See Williams uv.

New Orleans Public Service, Inc., 728 F.2d

730, 734 (5th Cir. 1984).

For example, this Court conducted a

hearing on April 2, 2009, to consider the

motion of Plaintiffs former attorney to

withdraw as counsel (Doc. No. 62), and to

take up Plaintiffs Motion for Extension of

Time to Find Counsel (Doc. No. 65). Plaintiff

failed to attend. As the Court stated that

day, Plaintiff failed to attend despite the

Court’s diligence in providing her notice of

the hearing. Despite a heavily weighted

calendar, the Court prioritized Plaintiff's

case and set Plaintiffs claims for trial

beginning on April 16, 2009. Doc. No. 67.

Plaintiff was notified of the April 16, 2009,

trial setting when she called the Office of the

Clerk of the Court to inquire about the

hearing conducted that day. See Clerk’s

Docket Entry dated April 2, 2009.

In the weeks following the hearing on

April 2nd and preceeding the trial on April

16th, Plaintiff filed her pretrial materials.

Doc. No. 73. However, as Defendant points

A-21

out, neither Plaintiff nor her named

witnesses appeared in Court at the time

appointed for trial. Def. Rsp. at 11. Instead,

Plaintiff filed what the Court construed as a

Motion for Continuance of Trial on April 15,

2009. Doc. No. 75. As the Court noted,

however, Plaintiff's Motion was not received

in chambers until the morning of Apri 16,

2009. Doc. No. 86, pg. 10. Defendant received

the Motion at about the same time that

morning. Jd. At no point prior to receipt of

the last minute Motion, did Plaintiff attempt

to call the Court or Defendant to inform

them of her asserted basis for continuance.

With respect to Plaintiffs second argument,

the Court notes that its judgment is only

void within the meaning of Rule 60(b)(4) if it

“lacked subject matter or _ personal

jurisdiction” or if it “acted in a manner

inconsistent with due process of law.” Callon

Petroleum Co. v. Frontier Ins. Co., 351 F.3d

204, 208 (5th Cir. 2003). “If a court has both

subject matter and personal jurisdiction,

however, the “only inquiry is whether the

district court acted in a manner so

inconsistent with due process as to render

the judgment void.” Id. at 209. (quoting New

York Life Ins. Co. v. Brown, 84 F.3d 137, 142-

43 (5th Cir. 1996)). The Fifth Circuit further

explained in Callon, “{s]uch circumstances

are rare because due process in civil cases

usually requires only proper notice and

A-22

service of process and a court of competent

jurisdiction. Id. (citing New York Life, 84

F.3d. at 142-143). Moreover, “[p]rocedural

irregularities during the course of a civil

case, even serious ones, will not subject the

judgment to collatera] attack.” Jd. (quoting

Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027

(5th Cir. 1982)).

For the reasons stated ly the Court

from the bench on April 16, 2009, and as set

forth in Defendant’s Brief, the Court finds

that Plaintiff has had proper notice and

service in this case. See Doc. No. 86, pg. 11-

17. This case has been active for over three

and a half years. Plaintiff has been afforded

every opportunity and has been provided

access to have her claims attended to by the

Court. Her failure to appear for trial is not

tantamount to a deprivation of due process.

Additionally, the Court repudiates Plaintiff's

assertion that “Plaintiff was denied her day

in Court because she is disabled.” Pl’s Mtn.

at 6. This Court continued Plaintiff's case on

previous occasions and prioritized this action

despite one of the highest caseloads on the

Northern District, all in order to ensure that

Plaintiff have her claims heard. Moreover,

the Court notes Defendant’s extraordinary

and uncommon willingness to ensure

Plaintiffs due process rights were protected.

See Doc. 85, pg. 20 n. 4.

A-23

Plaintiff was fully aware of the trial

proceedings set to begin on April 16, 2009.

Plaintiff had a fully adequate opportunity to

prepare for trial and to have her case heard

before the Court. Accordingly, the Court fails

to find convincing support for Plaintiffs due

process argument, and therefore does not

find that its judgment in this matter is void

on due process grounds. Plaintiffs last

argument relies on the catchall provision of

Rule 60. Relief under this provision of the

Rule should be granted only where

extraordinary circumstances are present.

Am. Guar. & Liab. Ins. Co. v. Hoeffner, 2009

U.S. Dist. LEXIS 31727, * 4 (S.D. Tex. 2009).

For the reasons previously stated, the Court

does not find that extraordinary

circumstances are present in this case, and,

thus relief on this basis should be denied.

Conclusion

Upon consideration of Plaintiff's

motion, the Court concludes that relief from

its previous Judgment is not warranted.

Plaintiff has failed to demonstrate that the

asserted bases for relief satisfy the

requirement of Rule 60(b) of the Federal

Rules of Civil Procedure. Accordingly,

Plaintiffs Motion is DENIED.

A * Zz 4

SO ORDERED this 19th day of June, 2009.

/s/ Reed O'Connor

UNITED STATES

DISTRICT JUDGE

A-25

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANITA JOHNSON,

Plaintiff,

Vv. No. 3:05cev2287

JOHN POTTER,

Postmaster General,

United States Postal

Service,

Defendant.

FINAL JUDGMENT

This action came to trial before the

Court for consideration. The Court has

entered its Findings of Fact and Conclusions

of Law finding that Defendant John Potter is

not liable to Plaintiff. See Doc. No. 78.

It is therefore ORDERED,

ADJUDGED and DECREED that Plaintiff

take nothing and finai judgment is entered

in favor of Defendant.

SO ORDERED on this 16th day of

April, 2009.

/s/ Reed O'Connor

UNITED STATES

DISTRICT JUDGE

A-26

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ANITA JOHNSON,

Plaintiff,

v. No. 3:05cv2287

JOHN POTTER,

Postmaster General,

United States Postal

Service,

Defendant.

ORDER

Before the Court is the Motion for

Extension of Time (Doc. # 75) filed on April

15, 2009 on behalf of Plaintiff by Somonia M.

Williams, who is neither a party to this

litigation nor an attorney. Despite these

deficiencies, the Court nevertheless liberally

construes the Motion as a Motion for

Continuance. During open court in the above

styled matter, the Court stated its basis for

finding that the Motion should be denied.

For the reasons stated on the record by the

Court on April 16, 2009, the Motion is hereby

DENIED.

A-27

SO ORDERED on this 16th day of

April, 2009.

/s/ Reed O’Uonnor

UNITED STATES

DISTRICT JUDGE

[Handwritten]

4-15-09 Case No. 3:05 CV-02287

To the Honorable Judge O’Connor

[I Anita Johnson have been hurting al) mght

4-14-09. This morning 4-15-09 I called my

Dr. Schade to get in to see him but he

instructed me to go to the emergency room

When I arrived, I was put in a room

and the Dr. ordered an X ray of my chest. I

asked him if there was a Dr. there who was

familiar with RSD, he said, no, there is not a

RSD doctor there and no one he could call.

While attempting to do the X-ray the

technician grabbed my left hurt arm and

now I worse than I was when I got there. I

told him before not to touch my left side but

he did anyway. I am asking the Court to

please give me an extension to get better and

seek attorney representation.

Respectfully,

/s/ Somonia M. Wilhams

For Anita L. Johnson

A-29

CENTER FOR PAIN CONTROL

A CARF ACCREDITED FACILITY

Date: 04-15-09

Patient Name: Anita Johnson

SSN: xxxxxxx

Date of Injury: 04-02-00

Anita Johnson currently remains

100 percent totally disabled and will remain

in this capacity until further notice. The

patient is precluded from even

menial/sedentary type tasks secondary to

pain sufficient to distract the concentrated

level, as well as inability to remain in one

position for any substantial length of time.

The assessment of her condition is:

:. Disorder of the Autonomic

Nervous System: Reflex

Sympathetic Dystrophy of the

Upper Limb.

Her current medications are: Lortah, Zoloft,

Lyriva, Phenergan, Sinequan and Zanaflex.

In summary, this patient is unable to

perform any type of duties on a regular basis

and therefore is not competent to represent

herself in court.

A-30

/s/ CM. Schade

C.M. Schade, M.D., Ph.D.

Board Certified in Pain Medicine

Board Certified in Anesthesiology

Senior Disability Analyst and Diplomat