United States District Court, D. Colorado
ORDER OF DISMISSAL
Michael E. Hegarty, United States Magistrate Judge.
matter comes before the Court sua sponte, due to
Plaintiff's failures to comply with this Court's
orders. For the reasons that follow, this case is dismissed
Plaintiff originated this action on March 17, 2016 and is
proceeding pro se and in forma pauperis.
ECF Nos. 1, 4. On March 31, 2016, the Court granted service
of process by the U.S. Marshal and, following service, held a
Scheduling Conference in this case on May 26, 2016. ECF Nos.
8, 20. Meanwhile, the Defendant filed a “Motion to
Dismiss or, in the Alternative, Motion for More Definite
Statement” in response to the operative pleading (ECF
No. 13). At the Scheduling Conference, the Plaintiff
presented a document saying he intended it to be an
explanation of his claims and the Court accepted it as such.
ECF Nos. 23, 24. Accordingly, the Court denied the motion to
dismiss without prejudice and denied the alternative motion
for more definite statement as moot. ECF No. 24. Defendant
filed an Answer to the Complaint and Plaintiff's
Statement on May 31, 2016 (ECF No. 26) and discovery
timely filed a Motion for Summary Judgment on December 5,
2016. ECF No. 30. Meanwhile, the parties requested the
Court's assistance with a discovery “dispute”
(ECF No. 29), and the Court held a conference on December 12,
2016 at which Plaintiff appeared pro se and
Defendant by its counsel; Defendant argued and the Plaintiff
conceded he had failed to submit initial disclosures and
respond to Defendant's discovery requests. ECF No. 33.
Accordingly, the Court ordered Plaintiff to respond to
Defendant's discovery requests on or before December 19,
2016, then scheduled a follow-up conference for December 20,
2016. Id. Plaintiff and Defendant appeared at the
December 20, 2016 conference, but Plaintiff had failed to
respond to Defendant's discovery requests. ECF No. 35.
Thus, the Court ordered that Plaintiff was to respond to all
outstanding discovery requests on or before January 13, 2017,
and his failure to fully respond would result in the Court
dismissing the case for Plaintiff's lack of prosecution.
Id. Plaintiff filed a form “Motion for
Appointment of Counsel” that same day, but the Court
denied the motion without prejudice for Plaintiff's
failure to demonstrate an “inability” to
“retain an attorney by other means” by simply
stating “I can't come up with finances to retain a
lawyer, ” and instructed the Plaintiff that he
“may re-file his motion and provide to the Court his
own testimony (by affidavit or declaration) and/or copies of
any documents or other information demonstrating
‘limited financial means.'” ECF No. 38.
timely responded to the pending motion for summary judgment
on December 30, 2016 and the Defendant timely replied on
January 13, 2017; in its reply brief, the Defendant informed
the Court that Plaintiff still had not responded to the
outstanding discovery requests. ECF No. 41. Consequently, on
January 20, 2017, the Court issued an order setting another
discovery conference for February 6, 2017. ECF No. 42. The
Court ordered that Plaintiff and counsel for Defendant appear
in person and “[f]ailure to comply with this order may
result in sanctions up to and including dismissal or
default.” Id. The Court's Case
Management/Electronic Case Filing (CM/ECF) system reflects
that the order was mailed to the Plaintiff at his current
address on January 20, 2017. Id.
January 23, 2017, Plaintiff filed a second motion for
appointment of counsel (ECF No. 44); however, because the
Plaintiff failed to comply with the order to provide an
affidavit or declaration or other document[s] demonstrating
his lack of finances at this stage of the litigation (see
id.),  the Court also denied the second motion
without prejudice, but stated that the Court would
“entertain the Plaintiff's request, if he chooses
to make it, at the February 6, 2017 conference.” ECF
No. 45. The Court's CM/ECF system reflects that the order
was mailed to the Plaintiff at his current address on January
24, 2017. Id.
February 6, 2017, the Defendant, through its counsel,
appeared at the discovery conference, but the Plaintiff
failed to appear.
Plaintiff is proceeding in this case without an attorney, he
bears the responsibility of prosecuting this case with due
diligence. After the Court was notified that Plaintiff had
neither submitted his initial disclosures nor responded to
the Defendant's discovery requests by the close of the
discovery period, the Court ordered Plaintiff to respond to
the Defendant's discovery requests on or before December
19, 2016; then, when he failed to do so, the Court gave him
another 25 days to submit discovery responses, but according
to the Defendant, he failed to do so. And as noted, Plaintiff
did not appear on February 6, 2017. Although the Court must
liberally construe pro se filings, pro se
status does not excuse the obligation of any litigant to
comply with the same court orders and rules of procedure that
govern other litigants. See Green v. Dorrell, 969
F.2d 915, 917 (10th Cir. 1992); see also Nielsen v.
Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
the Federal Rules of Civil Procedure give a district court
ample tools to deal with a recalcitrant litigant. See
Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993).
Fed.R.Civ.P. 41(b) allows a defendant to move for dismissal
of an action if the plaintiff fails to prosecute or to comply
with a court order. See id.; see also Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th
Cir. 2007). Although the language of Rule 41(b) requires that
the defendant file a motion to dismiss,  the Rule has long
been interpreted to permit courts to dismiss actions sua
sponte for a plaintiff's failure to prosecute or
comply with the rules of civil procedure or the court's
orders. Link v. Wabash R.R. Co., 370 U.S. 626,
district court undoubtedly has discretion to sanction a party
for failing to prosecute or defend a case, or for failing to
comply with local or federal procedural rules.”
Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.
2002). However, a dismissal with prejudice is a more severe
sanction and, generally, requires the district court to
consider certain criteria. AdvantEdge Bus. Group v.
Thomas E. Mestmaker & Assoc., Inc., 552 F.3d 1233,
1236 (10th Cir. 2009). The Tenth Circuit set forth a
non-exhaustive list of factors a district court should
consider when evaluating grounds for dismissal of an action
with prejudice: “(1) the degree of actual prejudice to
the defendant; (2) the amount of interference with the
judicial process; ... (3) the culpability of the litigant;
(4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for
noncompliance; and (5) the efficacy of lesser
sanctions.” Ehrenhaus v. Reynolds, 965 F.2d
916, 921 (10th Cir. 1992) (internal quotations and citations
omitted). “[D]ismissal is warranted when ‘the
aggravating factors outweigh the judicial system's strong
predisposition to resolve cases on their merits.'”
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co.,
497 F.3d 1135, 1144 (10th Cir. 2007) (quoting
Ehrenhaus, 965 F.2d at 921).
the first factor, the degree of actual prejudice to
the Defendant, the Court acknowledges the difficulty, in
general, of constructing a defense without requested
information concerning a plaintiff's claim and damages.
However, here, the Court finds that despite its lack of
discovery from the Plaintiff, Defendant timely filed a motion
for summary judgment and has not informed the Court that
further discovery is necessary for resolution of the motion.
Thus, at this stage of the litigation, the Court finds this
factor weighs in favor of neither position.
the second factor, Plaintiff's lack of response to this
Court's orders and his failure to appear has interfered
with the judicial process in that the Court has been unable
to advance this case. Additionally, the necessity of holding
three discovery conferences to address the
Plaintiff's failures increases the workload of the Court
and interferes with the administration of justice. This
factor weighs in favor of dismissal.
the Plaintiff has provided no justification for his failures
to respond to Court orders and to participate in the
litigation; certainly, he has shown his ability to comply
through his previous court appearances, his Statement of
Claims (ECF No. 23), and his response to the motion for
summary judgment (ECF No. 40). Thus, his culpability in
failing to comply is evident.
Plaintiff was warned in person at the December 20, 2016
conference, and in writing by the conference's minutes
and in the Court's January 20, 2017 order setting the
third discovery conference that any failures to comply may
result in dismissal for his failure to prosecute; yet, he has
made no response. Finally, the Court finds that no sanction
less than dismissal with prejudice would be effective here.
The Plaintiff appears to have essentially abandoned this
litigation and he claimed on December 20, 2016 that he could
“not come up with finances to retain ...