Kalkhorst v. Medtronic, Inc.

          ORDER

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court sua sponte. On July 26, 2018, the Court set a Scheduling Conference for September 7, 2018, at 3:00 p.m. See Order [#21].^[1] On September 6, 2018, the Court entered a Minute Order [#24] stating:

This case is set for a Scheduling Conference on September 7, 2018. Pursuant to the Local Rules of the United States District Court for the District of Colorado and Court Order [#21], Plaintiff was obligated to prepare a proposed Scheduling Order, to review and revise it with Defendant, and to tender it to the Court on or before August 31, 2018. See D.C.COLO.LCivR 16.1. The proposed Scheduling Order was not filed by the deadline. Accordingly, IT IS HEREBY ORDERED that the Scheduling Conference set for September 7, 2018, at 3:00 p.m. is VACATED and RESET for October 31, 2018, at 9:30 a.m. in Courtroom A-401, Fourth Floor, Alfred A. Arraj United States Courthouse, 90119th Street, Denver, Colorado. IT IS FURTHER ORDERED that Plaintiff shall make an appointment with the Colorado Federal Pro Se Clinic by calling 303-380-8786 about drafting and submitting a proposed scheduling order under Local Rule 16.1. The deadline for submission of the proposed scheduling order is October 17, 2018. In the event that Plaintiff does not comply with this deadline, Defendant shall submit its version of a proposed scheduling order no later than October 24, 2018. Plaintiff is hereby warned that failure to follow future Court orders may be construed as a failure to prosecute and result in dismissal of the case.

         Plaintiff did not file a proposed scheduling order by October 17, 2018, and therefore Defendant submitted its version of a Proposed Scheduling Order [#25] on October 24, 2018. In its Proposed Scheduling Order, Defendant noted that it “previously corresponded with Plaintiff on August 14, 2018, regarding a conference under Federal Rule of Civil Procedure 26(f) and the submission of a joint proposed scheduling order. But, to date, Plaintiff has not contacted Defendant's counsel in response.” See [#25] at 1 n.1.

         The day before the reset Scheduling Conference, on October 30, 2018, Plaintiff mailed a copy of a draft Scheduling Order to the Court via United States Postal Service. See Notice of Scheduling Order [#29]; Envelope [#29-2] at 1. That night, at 9:59 p.m., Defendant's counsel received via e-mail the draft Scheduling Order from Plaintiff. See Def.'s Ex. A [#30-1] at 1. Plaintiff's draft Scheduling Order essentially rewrote Defendant's portion of the Statement of Claims and Defenses to oppose almost all of Defendant's statements. See [#29] at 3-9. Subsequent sections of the document were erased except for the November 14, 2018 deadline for joinder of parties and amendment of pleadings and the statement regarding amendments to the scheduling order, i.e., that the order may be altered and amended only on a showing of good cause. See Id. at 9. Plaintiff also responded to Defendant's footnote about conferral by stating: “Plaintiff has been detained due to Grandson Health issues from May 2018-Oct 2018. Grandson's health is still being evaluated by his primary care physician.” See Id. at 1 n.1. No. further information was provided.

         At the Scheduling Conference on October 31, Defendant's counsel provided the Court with a copy of Plaintiff's draft Scheduling Order that had been e-mailed to him late the previous evening. See Courtroom Minutes [#26] at 1; Def.'s Ex. A [#30-1] at 1. Plaintiff failed to appear at the Scheduling Conference, despite clearly being on notice about the time and date of the hearing. See [#24]; [#25] at 1; [#29] at 1.

         The Court entered Defendant's version of the Proposed Scheduling Order, with interlineations, as an order of the Court. See Scheduling Order [#27]. In relevant part, the Court stated on the first page of the Scheduling Order [#27]: “NOTE TO PLAINTIFF: Failure to comply with any deadline set forth in this Order shall result in dismissal of your case.” Plaintiff was ordered to file a supplement to Section 3.a. of the Scheduling Order no later than November 6, 2018, setting forth the facts underlying his claims. Plaintiff was further ordered to file a supplement to Section 5 of the Scheduling Order no later than November 6, 2018, setting forth his alleged damages by category and amount. The parties were ordered to exchange Rule 26(a)(1) initial disclosures pursuant to Section 6.c. of the Scheduling Order no later than November 14, 2018. Plaintiff was ordered to file a supplement to Section 9.d.1. of the Scheduling Order no later than November 6, 2018, setting forth any fields of expert testimony he intends to present. Finally, Plaintiff was ordered to file a supplement to Section 9.e. of the Scheduling Order no later than November 6, 2018, listing those witnesses he intends to depose. The Courtroom Minutes [#26] reiterated the deadlines with which Plaintiff was required to comply and the notice regarding the consequences if Plaintiff should fail to comply with those deadlines.

         On November 1, 2018, the Clerk of Court received the mailed copy of Plaintiff's draft Scheduling Order, with which Plaintiff also included a copy of his Charge of Discrimination. See [#29, #29-1]. On November 5, 2018, at 3:06 p.m., Plaintiff left a voicemail for Defendant's counsel, regarding his case. See Def.'s Ex. A [#30-1] at 1. Although the precise contents of that message are not known to the Court, Defendant's counsel responded by e-mail about thirty minutes later, stating in part: “Unfortunately, we cannot advise you regarding your obligations pursuant to the Court's October 31, 2018 Courtroom Minutes [ECF No. 26] and the Court's accompanying October 31, 2018 Scheduling Order [ECF No. 27], which I have attached here as a courtesy.” Id. On November 19, 2018, Defendant filed a Notice of Plaintiff's Continued Failure to Comply With the Orders of This Court [#30], in which it notified the Court that Plaintiff also missed the November 14, 2018 deadline to exchange initial disclosures pursuant to Fed.R.Civ.P. 26(a)(1). Plaintiff did not file any type of response to Defendant's Notice, although the Court has waited more than twenty-one days before issuing this present Order so as to give Plaintiff the opportunity to do so.

         Despite the Court's clear warning about the consequences for failing to comply with the deadlines set forth in the Scheduling Order, Plaintiff has filed nothing, including a request for an extension of time or a request for clarification, since the Court received his draft Scheduling Order in the mail on November 1, 2018. Plaintiff's conduct to date demonstrates a lack of interest in prosecuting this case as well as a failure to comply with multiple Court orders. The Court therefore 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 the 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). Because Plaintiff is proceeding pro se, the Court has given Plaintiff several 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.

         I. Analysis

         In Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), the Tenth Circuit enumerated the factors to be considered when evaluating grounds for dismissal of an action.^[2] 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 Defendant

          From a review of the case file, the Court finds that Plaintiff's neglect of his case has prejudiced Defendant. Defendant has defended this lawsuit in good faith, attended the Scheduling Conference, and prepared Court documents. Moreover, Plaintiff's failure to materially participate in creation of the Scheduling Order and to exchange initial discovery has prejudiced Defendant's ability to defend against the allegations made by Plaintiff in his Amended Complaint [#8]. Allowing the case to proceed when Plaintiff has failed to comply with his obligations would require Defendant to expend further unnecessary time and expense to defend against a case which Plaintiff appears to have little interest in prosecuting on his own. This factor weighs in favor of dismissal.

         B. Interference with ...