United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
matter comes before the Court sua sponte due to
Plaintiff's failure to respond to this Court's order
to show cause. The Court recommends that this case be
dismissed with prejudice.
Plaintiff initiated this action on June 23, 2017. ECF No. 1.
On October 17, 2017, I granted Plaintiff's request to
stay the case, pending an appraisal of its property after the
property was damaged in a hail storm. ECF No. 25. That stay
remains in effect.
September 13, 2018, Plaintiff's counsel filed a motion to
withdraw as attorney. ECF No. 30. Because this motion would
leave the Plaintiff corporation unrepresented, I set a
hearing on the motion and required a representative of
Plaintiff to appear at the hearing in person. ECF No. 32.
Further, I required Plaintiff's counsel to file a
certificate of service demonstrating that Plaintiff had been
served a copy of my order setting the hearing. Id.
Plaintiff's counsel timely complied with this order.
See ECF No. 33.
October 9, 2018 hearing, Plaintiff's counsel appeared but
a representative of Plaintiff did not. See ECF No.
34. After Plaintiff's counsel described his unsuccessful
attempts to contact his client prior to the hearing, I
granted the motion to withdraw. See Id.
Consequently, the Plaintiff corporation was left
unrepresented and unable to appear before the Court.
Mahajan v. Boxcar Holdings, LLC, No.
18-cv-00533-MEH, 2018 WL 3056072, at *1 (D. Colo. Apr. 27,
2018) (“[A] corporation may appear in the federal
courts only through licensed counsel.'). Therefore, I
issued an order to show cause directing Plaintiff to explain
why I should not recommend its case be dismissed for failure
to prosecute by October 23, 2018. ECF No. 35. That date has
come and passed, and Plaintiff has not responded to 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, 630-31
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. Grp. 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).
Court finds the first factor is neutral since, although the
Defendant has been named in a lawsuit, the case is currently
stayed. However, Plaintiff's lack of response to this
Court's orders and its failure to participate has
interfered with the judicial process in that the Court has
been unable to advance this case. Additionally, the necessity
of issuing an order to show cause increases the workload of
the Court and interferes with the administration of justice.
Plaintiff has provided no justification for its failure to
respond to Court orders and to participate in the litigation;
its culpability is evident. Plaintiff was warned in the order
to show cause that the Court would recommend 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. Plaintiff has
essentially abandoned this litigation; thus, no monetary
sanction would be practical. The Court concludes that
dismissal with prejudice is the appropriate result.
Plaintiff appears to have abandoned its claims in this
matter. It has failed to prosecute the case with due
diligence by his failure to appear at the motion hearing and
to respond to this Court's order to show cause.
Therefore, dismissal of this action against Defendant is
on the foregoing and the entire record herein, and pursuant
to Fed. R Civ. P. 41(b), I respectfully
recommend that the Honorable William J.
Martinez dismiss this case with prejudice for Plaintiffs
failure to prosecute this action.
 Be advised that all parties shall have
fourteen (14) days after service hereof to serve and file any
written objections in order to obtain reconsideration by the
District Judge to whom this case is assigned. Fed.R.Civ.P.
72. The party filing objections must specifically identify
those findings or recommendations to which the objections are
being made. The District Court need not consider frivolous,
conclusive or general objections. A party's failure to
file such written objections to proposed findings and
recommendations contained in this report may bar the party
from a de novo determination by the District Judge
of the proposed findings and recommendations. United
States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28
U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and
recommendations within fourteen (14) days after being served
with a copy may bar the aggrieved party from appealing the