United States District Court, D. Colorado
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 ...