United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE.
This
matter is before the Court on the Court's Minute
Order [#20][1] issued on October 4, 2018. In that Minute
Order [#20], the Court ordered Plaintiff to file Responses to
the pending Motions to Dismiss [#14, #16, #17] (all of which
were filed in late August) no later than October 25, 2018.
Plaintiff was warned that failure to comply with the Minute
Order [#20] “will result in a recommendation that his
case be dismissed for failure to prosecute.” (emphasis
omitted).
To
date, the Minute Order has not been returned to the Court as
undeliverable. Despite the Court's clear warning about
the consequences for failure to respond to the Minute Order,
Plaintiff did not file Responses, or any other document, by
the October 25, 2018 deadline. As the Court sets forth in
detail below, Plaintiff's conduct demonstrates a lack of
interest in prosecuting this case. Because Plaintiff is
proceeding pro se, the Court has given Plaintiff multiple
opportunities to prosecute his case. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court is not Plaintiff's advocate and must
nevertheless recommend dismissal if circumstances warrant
that outcome. See Hall, 935 F.3d at 1110.
By way
of giving context to the Court's Recommendation, the
Court provides the following background. On May 26, 2016,
Plaintiff filed the present lawsuit pro se in the United
States District Court for the District of Minnesota, seeking
damages allegedly sustained for injuries relating to a car
accident which occurred while he was in Colorado. See
generally Compl. [#3]. On August 8, 2016, the United
States District Judge presiding over the case ordered the
matter transferred to the United States District Court for
the District of Colorado pursuant to 28 U.S.C. §
1406(a). See [#1]. The case underwent pro se review
from August 9, 2016, until July 26, 2018. On July 26, 2018,
Plaintiff's long-pending Application to Proceed in
District Court Without Prepaying Fees or Costs [#4], first
filed in the District of Minnesota on May 20, 2016, was
granted, and the United States Marshals Service was shortly
thereafter directed to serve the Complaint and Summons on the
three Defendants in this matter. See [#5, #7]. On
July 30, 2018, and August 1, 2018, the case was reassigned to
the present District Judge and Magistrate Judge. See
[#6, #8]. Between August 28 and 30, 2018, Defendants filed
their Motions to Dismiss [#14, #16, #17]. Plaintiff did not
file Responses and did not meet the Court's extended
deadline by which to do so. Minute Order [#20].
Given
Plaintiff's conduct, the Court considers whether
Plaintiff's case should be dismissed as a sanction
pursuant to Fed.R.Civ.P. 41(b). See Rogers v. Andrus
Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007)
(noting that Court has inherent authority to consider sua
sponte whether a case should be involuntarily dismissed due
to a plaintiff's failure to prosecute); 9 Charles Alan
Wright & Arthur R. Miller, Federal Practice and
Procedure § 2369, at 576-77 & n.1 (3d ed.
2008). Typically, the Court is inclined to recommend
dismissal without prejudice under circumstances such as these
where a plaintiff has simply stopped prosecuting his case
very early on in the litigation process. However, given the
age of the case, the Court notes that dismissal at this time,
even without prejudice, would likely effectively serve as a
dismissal with prejudice due to the statute of
limitations.[2] Thus, although typically not required to
do so when recommending dismissal without prejudice, see
Banks v. Katzenmeyer, 680 Fed.Appx. 721, 724 (10th Cir.
2017), the Court here examines the factors outlined in
Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir.
1992).
In
Ehrenhaus, the Tenth Circuit enumerated the factors
to be considered when evaluating grounds for dismissal of an
action.[3] The factors are: “(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.” Id. at 921 (internal
quotations and citations omitted); see also Gates Rubber
Co. v. Bando Chems. Indus., 167 F.R.D. 90, 101 (D. Colo.
1996). “[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). Given that Plaintiff is
proceeding pro se, the Court must carefully conduct its
analysis and consider whether “some sanction other than
dismissal [with prejudice is appropriate], so that the party
does not unknowingly lose [his] right of access to the courts
. . . .” Nasious v. Two Unknown BICE Agents,
492 F.3d 1158, 1163 (10th Cir. 2007) (quoting
Ehrenhaus, 965 F.2d at 920 n.3).
A.
Prejudice to Defendants
From a
review of the case file, the Court finds that Plaintiff's
neglect of his case has prejudiced Defendants, albeit
minimally at this early stage of the case. Defendants have
defended the lawsuit in good faith by responding to service
of the Complaint and Summons and by preparing court
documents. Allowing the case to proceed when Plaintiff's
whereabouts are unknown would require Defendants to expend
further unnecessary time and expense to defend against a case
which Plaintiff appears to no longer have an interest in
prosecuting on his own. This factor weighs in favor of
dismissal.
B.
Interference with the Judicial Process
The
Court concludes that Plaintiff's failure to prosecute his
case necessarily interferes with the effective administration
of justice. The issue here “is respect for the judicial
process and the law.” See Cosby v. Meadors,
351 F.3d 1324, 1326-27 (10th Cir. 2003). Plaintiff's
failure to contact the Court or put himself in a position to
comply with Court orders evidences lack of respect for the
Court and the judicial process. In particular,
Plaintiff's neglect has caused the undersigned and her
staff to expend unnecessary time and effort. The Court's
frequent review of the case file and issuance of this
Recommendation increase the workload of the Court and take
its attention away from other matters where the parties have
fulfilled their obligations and are deserving of prompt
resolution of their issues. “This order is a perfect
example, demonstrating the substantial time and expense
required to perform the legal research, analysis, and writing
to craft this document.” Lynn v. Roberts, No.
01-cv-3422-MLB, 2006 WL 2850273, at *7 (D. Kan. Oct. 4,
2006). This factor weighs in favor of dismissal.
C.
Culpability of Plaintiff
Plaintiff
has, without providing any excuse, ignored his case
responsibilities and failed to move his case forward. The
Court provided Plaintiff with ample opportunities to litigate
his case, but since the case was transferred from the
District of Minnesota, he has chosen not to participate. As a
voluntary pro se litigant, it is solely Plaintiff's
responsibility to ensure that he complies with case
deadlines, Court orders and applicable rules. See,
e.g., Green v. Dorrell, 969 F.2d 915, 917 (10th
Cir. 1992). An examination of the record reveals that no
Court-issued documents have been returned for insufficient
address. Thus, Plaintiff has either ignored these filings or
else failed to inform the Court of his current address. It is
solely the responsibility of Plaintiff to ensure that the
Court knows of his whereabouts. Considering the history of
this case, the Court must conclude that Plaintiff's
failures have been willful, and that he is therefore
responsible for his own noncompliance. This factor weighs in
favor of dismissal.
D.
Advance Notice of Sanction of Dismissal
Plaintiff
was warned by the Court in its October 4, 2018 Minute Order
[#20] that he risked dismissal of his case if he failed to
move the case forward or to comply with Court orders. Pro se
litigants are required to read and follow the rules of the
Court. Green v. Dorrell, 969 F.2d 915, 917 (10th
Cir. 1992). Thus, even if Plaintiff did not receive the
warning because he failed to keep the Court apprised of his
current mailing address, the responsibility for lack of
notice falls on his shoulders. The Court also notes that this
Recommendation will serve as a final advance notice of
sanction of dismissal, to which Plaintiff may respond if he
so chooses, as outlined at the end of this Recommendation.
Although this factor ...