United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE.
This
matter comes before the Court on Defendant [sic] New Werner
Holding Company (DE) Inc. & Werner Co.'s Motion to
Dismiss with Prejudice Erwin Elston Howard's Claims for
Failure to Prosecute [Docket No. 47] and Defendant Home Depot
U.S.A., Inc.'s Motion to Dismiss with Prejudice Erwin
Elston Howard's Claims for Failure to Prosecute [Docket
No. 48]. Defendants request that the Court dismiss
plaintiff's claims pursuant to Fed.R.Civ.P. 41(b). Docket
No. 47 at 2, ¶ 1. On November 19, 2015, plaintiff filed
this case in the District Court for the City and County of
Denver. Docket No. 3 at 2. On April 22, 2016, plaintiff's
former counsel filed a motion to withdraw, which was granted
on April 27, 2016. Docket Nos. 47-1 at 2; Docket No. 1- 32.
Plaintiff represents himself in this case. See,
e.g., Docket No. 34. On May 27, 2016, defendant Home
Depot U.S.A., Inc. removed the case to this Court. Docket No.
1. On July 7, 2016, Magistrate Judge Michael E. Hegarty
administratively closed this case, reminded the parties that
they would have to move to reopen the case for it to proceed,
and ordered monthly status reports on the parties'
ongoing investigations and settlement negotiations.
See Docket No. 37. On July 13, 2016, this case was
reassigned. Docket No. 43.
Defendants
New Werner Holding Company (DE) Inc. & Werner Co. (the
“Werner defendants”) attached to their motion
emails that defense counsel exchanged with plaintiff
regarding the status of the case. On April 21, 2017, defense
counsel stated that the parties were “too far apart
money wise to get this settled.” Docket No. 47-7 at 1.
Defense counsel informed plaintiff that, if he
“want[ed] to proceed with the lawsuit, . . . we need to
notify the Court that we have been unable to reach a
settlement agreement, and the case should probably become
active again.” Id. Defense counsel offered to
“prepare a notice for the Court [to reopen the case]
that you can review before I file it.” Id. On
October 12, 2017, plaintiff stated in an email to defense
counsel that he did wish to proceed with this lawsuit. Docket
No. 47-9.
On
November 28, 2017, the Werner defendants filed their motion
to dismiss. Docket No. 47. On February 9, 2018, defendant
Home Depot U.S.A., Inc. filed its motion to dismiss,
essentially joining the Werner defendants' motion. Docket
No. 48 at 2, ¶¶ 2-4. Plaintiff did not respond to
the motions. On July 2, 2018, the Court entered a minute
order noting that, despite the two motions, “no party
has moved to reopen this case, which is administratively
closed.” Docket No. 49 at 1. The Court reopened the
case, deemed defendants' motions to dismiss filed as of
July 2, 2018, and set a July 20, 2018 deadline for plaintiff
to respond to the motions to dismiss. Id. On July
18, 2018 plaintiff filed a response, stating in full:
1. It has always been my full intention to proceed with this
case.
2. Furthermore, I did not receive emails/documents or
otherwise regarding this case. Upon receiving the latest
documents that were filed on 7-02-2018, I did check my
“inbox” to no avail. I did check my Spam folder
and the documents were located there.
3. As stated again, it is my full intention to proceed with
this case and to recover all medical reimbursements and loss
of wages.
Docket No. 50. Plaintiff has not otherwise filed any response
to the motions to dismiss or filed any other papers.
Under
Fed.R.Civ.P. 41(b), “[i]f the plaintiff fails to
prosecute . . ., a defendant may move to dismiss the action
or any claim against it.” In considering whether to
dismiss a case as a sanction, courts consider factors
including “(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 quotation marks and citations omitted).
The
Court finds that each factor favors dismissal. Under the
first and second factors, leaving this inactive, unresolved
case on the docket is prejudicial to defendants and
interferes with the Court's management of its docket.
Under the third and fourth factors, plaintiff is responsible
for prosecuting his case, but he has done nothing to do so
despite a warning from Magistrate Judge Hegarty, reminders
from defendants that he would need to act to reopen the case,
motions to dismiss for lack or prosecution, and the
Court's July 2, 2018 order for him to respond to the
motions. Plaintiff's response to defendants' motions
does not address defendants' arguments that dismissal is
warranted. Instead, it merely states plaintiff's
intention to “proceed.” In light of the two years
between the administrative closure of this case and
plaintiff's nonsubstantive response to the motions to
dismiss, the Court finds that dismissal is warranted as a
sanction.[1] Although plaintiff claims that he intends
to “proceed, ” plaintiff has not done so for
years. His failure to address the grounds for the motions to
dismiss demonstrates that plaintiff either is unwilling to
participate or unable to rebut the basis for the motions.
Either ground is a reason to dismiss this action. Therefore,
the Court will grant defendants' motions and dismiss
plaintiff's claims pursuant to Fed.R.Civ.P. 41(b).
Accordingly,
it is
ORDERED
that Defendant [sic] New Werner Holding Company (De) Inc.
& Werner Co.'s Motion to Dismiss with Prejudice Erwin
Elston Howard's Claims for Failure to Prosecute [Docket
No. 47] and Defendant Home Depot U.S.A., Inc.'s Motion to
Dismiss with Prejudice Erwin Elston Howard's Claims for
Failure to Prosecute [Docket No. 48] are
GRANTED.
ORDERED
that, pursuant to Fed.R.Civ.P. 41(b), this case is dismissed
with prejudice and judgment shall enter in favor of
defendants and against plaintiff on each of plaintiff's
claims. It is further
ORDERED
that, within 14 days of the entry of judgment, defendants may
have their costs by filing a bill of costs with ...