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Bershas v. CitiMortgage, Inc.

United States District Court, District of Colorado

December 5, 2014

JULIE BERSHAS, Plaintiff,
v.
CITIMORTGAGE, INC. Defendant.

ORDER ADOPTING RECOMMENDATION OF MAGISTRATE JUDGE AND DISMISSING CASE WITH PREJUDICE

RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE

This matter is before the Court on a recommendation from United States Magistrate Judge Michael J. Watanabe (the “Recommendation”) (ECF No. 18) that this case be dismissed with prejudice and that Defendant’s motion to dismiss (ECF No. 10) be denied as moot. He further recommended that plaintiff be directed to pay reasonable costs and attorney fees incurred in connection with plaintiff’s failure to appear on two different occasions unless she can demonstrate why such an award would be unjust. The Recommendation is based upon the failure to prosecute of Plaintiff Julie Bershas, who is appearing pro se. She last appeared in Judge Watanabe’s court for a status conference on November 13, 2013 but since that time has failure to appear for scheduled court dates more than once and she also failed to respond to Judge Watanabe’s subsequent Order to Show Cause. (ECF No. 18 at 1-3.) Plaintiff has not responded in any way to the Recommendation despite having more than ample time to do so.

I agree with Judge Watanabe’s analysis of the appropriate sanction in this case, which is dismissal with prejudice with an award of reasonable costs and fees in connection with the missed court appearances. Given Plaintiffs numerous failures to appear, respond or otherwise prosecute this case, the length of time in which she has neglected this case, and the fact that nothing in the record appears to excuse her neglect of this matter, dismissal with prejudice is appropriate.

Having reviewed the record, the Court accepts and adopts the Recommendation in full. Accordingly, the Court ORDERS as follows:

(1) The Recommendation (ECF No. 18) is ADOPTED in its entirety;

(2) This case is DISMISSED WITH PREJUDICE for failure to prosecute, failure to appear, and failure to comply with court orders;

(3) Defendant’s Motion to Dismiss (ECF No. 10), is DENIED AS MOOT;

(4) Plaintiff is directed to pay the reasonable expenses and attorney fees Defendant incurred as a result of Plaintiff s failure to appear on December 11, 2013 and January 22, 2014;

(5) Defendant is directed to file a bill of costs and an affidavit with supporting documentation regarding fees incurred in connection with the dates above no later than 14 days after entry of judgment;

(6) The Clerk of the Court is directed to enter judgment in favor of Defendant.


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