The opinion of the court was delivered by: Gladys Kessler United States District Judge
On July 10, 2006, this Court entered an Order addressing Defendants' persistent and long-standing failure to comply with Court deadlines ("Penalties Order") [Dkt. #1175]. After setting forth a long history of missed deadlines, the Order requires Plaintiffs to "monitor Defendants' compliance with meeting deadlines," including those contained in the January 22, 1999 Order Modifying the Amended Remedial Order of May 6, 1997 and Vacating the Order of March 27, 1997 ("Settlement Order") [Dkt. #663], other Court Orders, and the negotiation requirement in paragraph 80 of the Settlement Order. ¶ 2, July 10, 2006 Order. The Penalties Order also requires Plaintiffs to file a Praecipe if Defendants miss one or more of these deadlines. Paragraph 4 of the Penalties Order also provides that "[a]fter each calendar quarter, if any penalties accrue during the quarter, Plaintiffs shall file a praecipe with this Court documenting the penalties that accrued."
Paragraph 2 of the Penalties Order sets out the sanctions for failure to comply with designated deadlines:
$100 per day for every day within 5 days of the deadline that Defendants fail to complete the required action, $250 per day for every day from 6 to 15 days, $500 per day for every day from 16 to 30 days, $1,000 per day for every day from 30 to 60 days, and $5,000 per day for every day over 60 days.
The Court explained in its accompanying Memorandum Opinion at p. 3 [Dkt. #1176]that: by setting out in black and white what financial penalties the Defendants will face if they continue their failure to adhere to well-established deadlines, Defendants will be put on full notice of the sanctions which will be imposed. Thus, by warning Defendants of the risk they face for violation of Court Orders and relevant Court rules, they should be deterred by this civil, coercive remedy from similar conduct in the future.
In conformity with paragraph 4 of the Penalties Order, Plaintiffs have filed praecipes for the third quarter of 2006 [Dkt. #1234], the fourth quarter of 2006 [Dkt #1261], the second quarter of 2007 [Dkt. #1296], the third quarter of 2007 [Dkt. #1317], and the first quarter of 2008 [Dkt. #1354]. The Court will now address each of these praecipes separately.
1. For the third quarter of 2006, Plaintiffs request that the Court require Defendants to pay $1,500 in penalties.*fn1 Plaintiffs argue that Defendants were required to provide responses to discovery which were due August 14, 2006, that Defendants waited until August 22, 2006 (after Plaintiff had filed a praecipe notifying the Court of Defendants' failure) to file a Motion for Extension of Time within which to provide such responses [Dkt. #1206], and that Defendants submitted their discovery responses and document production on August 24, 2006, before the Court had ruled on the Motion for an Extension of Time.
Defendants provide no valid reason for their failure to comply with Court deadlines. Their excuse of "inadvertent error" is simply unacceptable. Filing twenty days late does not constitute "inadvertent error." Therefore, for the third quarter of 2006, $1,500 in penalties have accrued and are assessed against Defendants.
2. For the fourth quarter of 2006, Plaintiffs request that the Court require Defendants to pay $39,800 in penalties.
a. Defendants failed to distribute the Dental Brochure on April 15, 2006, as required by the Dental Order of October 18, 2004 [Dkt. #1033]. Paragraph 2(b) of that Order requires distribution of the Dental Brochure to "licensed dentists and pediatric health care providers." After admitting to the Court that the Brochure was mailed to Medicaid providers on May 2, 2006, rather than as required on April 15, 2006, Defendants also admitted the notice had not been sent, as required by the October 18, 2004 Order, to all licensed dentists and pediatric health care providers regardless of whether they were Medicaid providers. Defendants promised the Court they would do so by October 1, 2006. Defendants failed to do so. On December 15, 2006, 43 days after the Brochure should have been mailed or Defendants should have requested an extension of time, Defendants finally filed a motion seeking an extension of time until February 7, 2007 within which to distribute the Dental Brochure [Dkt. #1255]. What is more, in a letter of December 22, 2006 to Plaintiffs, Defendants stated that they were not able to identify "pediatric health care providers" and therefore could not send them the required Brochure. As of December 31, 2006, no Brochure had been sent to any pediatric health care providers.
In explanation, Defendants claim first that the delay in mailing the Dental Brochure occurred because the District of Columbia lacked funds at the end of Fiscal Year 2006 to produce and mail them. However, this excuse is of little help to Defendants. If the Brochure had been mailed by April 15, 2006, a date in the middle of the Fiscal Year, when it was supposed to have been, Defendants would not have faced the lack of funds at the end of the Fiscal Year, which ended on September 30, 2006.*fn2
Second, Defendants argue that when they promised the Court to send the Brochure by October 1, 2006, they did not mean October 1, 2006, immediately after the beginning of the new Fiscal Year, but meant they would send the Brochure only after completion of what is always a lengthy process of soliciting, negotiating and awarding a contract, as well as performing the work required. This argument is equally unpersuasive. The simple answer is that if Defendants meant October 15 or October 30 or November 1 or November 30, they should have said so, instead of saying October 1. The bottom line is that Defendants did not even file their request for an extension of time until six months after the original Dental Order deadline of April 15, 2006, and two and a half months after the date they themselves promised to distribute the Brochure, namely, October 1, 2006,
Third, if, as Defendants argue, they believed that the term "pediatric care providers" in the Dental Order was ambiguous and/or vague, they should have sought clarification as to its meaning long before the April 15, 2006 deadline. The Dental Order was signed October 18, 2004. Thus, Defendants had well over a year to obtain a clarification of the language.
Fourth, Defendants complain that Plaintiffs are partly to blame because they could have suggested a list of providers that would satisfy the requirement in the Dental Order. This argument is totally disingenuous. Aside from the fact that it is not Plaintiffs' responsibility to help Defendants comply with Court Orders, Plaintiffs in fact did specifically suggest that, at the very least, Defendants provide notice to all members of the District of Columbia Chapter of the American Academy of Pediatricians in order to comply with the October 18, 2004 Order.
Finally, Defendants argue that the Court should stay its ruling until it rules on Defendants' pending Motion to Vacate the Dental Order. Defendants are wrong. They are under an obligation to comply with existing Orders unless and until any pending motions to vacate are granted. Were the Motion to Vacate to be ...