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Rix v. University of Colorado Hospital Authority

United States District Court, D. Colorado

June 1, 2017

SHERRY F. RIX, Plaintiff,
v.
UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, Defendant.

          ORDER

          R. Brooke Jackson United States District Judge.

         This matter is before the Court on two pending motions filed by defendant University of Colorado Hospital Authority (“UCHA”): (1) a motion to dismiss under Rules 41(b) and 37, ECF No. 44; and (2) a motion for summary judgment, ECF No. 48. For the reasons below, the Court GRANTS defendant's motion to dismiss and therefore and DENIES its motion for summary judgment [ECF No. 48] as moot.

         I. FACTS

         In this action, plaintiff Sherry Rix alleges, among other things, racial and sexual harassment and retaliation by her former employer, UCHA. See generally ECF No. 1. She brings multiple claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. Id. For purposes of this motion, however, the pertinent facts are those which occurred after defendant served plaintiff with its First Set of Interrogatories and Requests for Production on December 13, 2016. See ECF No. 44; ECF No. 44-1 (defendant's First Set of Interrogatories and Requests for Production of Documents to plaintiff). After receiving those interrogatories and requests, plaintiff failed to timely object or respond within the requisite 33-day time period. ECF No. 41 at 2.

         Defendant subsequently brought plaintiff's noncompliance to the Court's attention. On March 3, 2017 the Court issued an order directing plaintiff to object or respond to defendant's interrogatories and requests no later than March 17, 2017. Id. In that order, I warned plaintiff that failure to comply could result in sanctions, including the dismissal of her case. Id. By all indications, plaintiff has still failed to properly object or respond to UCHA's interrogatories and requests.[1] Defendant subsequently moved to dismiss plaintiff's complaint with prejudice under Rule 41(b) and Rule 37 on March 22, 2017. ECF No. 44. It then filed a motion for summary judgment roughly a week later on March 31, 2017-the amended deadline for dispositive motions in this case. ECF Nos. 39, 48.

         II. STANDARD OF REVIEW

         A. Pro Se Party.

         When a case involves a pro se party, the court will “review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). Nevertheless, “it is [not] the proper function of the district court to assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A “broad reading” of a pro se plaintiff's pleadings “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Id. Furthermore, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (internal quotation marks and citations omitted).

         B. Rule 41(b) and Rule 37.

         Federal Rule of Civil Procedure 41(b) provides, in part, that “[i]f the plaintiff fails . . . to comply with . . . a court order, a defendant may move to dismiss the action or any claim against it.” A dismissal under Rule 41(b) “operates as an adjudication on the merits.” Fed.R.Civ.P. 41(b). By the same token, Federal Rule of Civil Procedure 37(b)(2)(A) provides that a court may “issue further just orders” after a party “fails to obey an order to provide or permit discovery[.]” Those “further just orders” include, among other things, “dismissing the action or proceeding in whole or in part[.]” Fed.R.Civ.P. 37(b)(2)(A)(v).

         As the Tenth Circuit has explained, “[t]he sanction of dismissal with prejudice for failure to prosecute is a ‘severe sanction, ' a measure of last resort.” Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (citation omitted). The court has nevertheless provided a “non-exhaustive list of factors that a district court must consider in determining whether to dismiss an action with prejudice under Rule 41(b)[.]” Id. Those include: “(1) the degree of actual prejudice to the other party; (2) the amount of interference with the judicial process; (3) the litigant's culpability; (4) whether the court warned the party in advance that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Id. at 1143-44 (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).

         III. ANALYSIS

         For almost six months plaintiff has stonewalled defendant's attempts to complete numerous routine aspects of the discovery process. In particular, Ms. Rix has failed to object or otherwise timely respond to UCHA's interrogatories and requests despite my prior order directing her to do exactly that no later than March 17, 2017. ECF No. 41 at 2. What's more, in that order, as well as another prior order I issued on January 6, 2017 regarding plaintiff's failure to make disclosures as required under Rule 26(a)(1), I warned plaintiff that her obstinacy in this case could very well result in dismissal of her claims. ECF Nos. 31, 41. My warnings, however, went unheeded as plaintiff has still failed to comply with that order. Thus, while dismissal of an action is undoubtedly a “severe” course of action, I believe the circumstances warrant such a sanction here.

         In order to dismiss plaintiff's case under Rule 41(b), circuit precedent dictates that I consider the non-exhaustive list of factors spelled out in cases such as Ehrenhaus. See 965 F.2d at 921 (“These factors do not constitute a rigid test; rather, they represent criteria for the district court to consider prior to imposing dismissal as a sanction.”). To reiterate, these include: “(1) the degree of actual prejudice to the other party; (2) the amount of interference with the judicial process; (3) the litigant's culpability; (4) whether the court warned the party in advance that dismissal would be a likely sanction for ...


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