United States District Court, D. Colorado
RECOMMENDATION AND ORDER
Scott
T. Varholak, United States Magistrate Judge.
This
civil action is before the Court on Defendant Walmart,
Inc.'s Motion to Dismiss for Failure to Prosecute (the
“Motion”) [#29], which has been referred to this
Court [#30]. For the following reasons, the Court
respectfully RECOMMENDS that the Motion be
GRANTED and that this case be
DISMISSED for failure to prosecute.
Plaintiff
initiated this action on June 20, 2018 in the Adams County
District Court. [#1 at 1] Defendant removed the action to
this Court on July 23, 2018. [See generally #1] In
October 2018, Plaintiff's attorney filed a Motion to
Withdraw [#24] based on irreconcilable differences, which the
Court granted [#26]. Plaintiff was advised that she was
personally responsible for appearing pro se, and for
complying with all Court deadlines, Local Rules, and the
Federal Rules of Civil Procedure. [##24-1, 26] Plaintiff was
also specifically advised of the remaining deadlines in this
case. [#24-1] The Court scheduled a Status Conference for
October 24, 2018. [#26]
Plaintiff
did not make any effort to appear for the October Status
Conference. Accordingly, the Court contacted Plaintiff by
telephone to enable Plaintiff to appear telephonically at
that hearing. [#28] Plaintiff hung up on the Court.
[Id.] When the Court attempted to contact Plaintiff
a second time, again she hung up. [Id.] This Court
advised Plaintiff that if she continued to refuse to
participate in the prosecution of the case, the Court would
issue an order to show cause why her case should not be
dismissed for failure to prosecute. [Id.]
Defendant
filed the instant Motion nearly three months later. [#29] In
the Motion, Defendant represents that Plaintiff has stopped
responding to, or otherwise communicating with, defense
counsel. [Id. at 2] Plaintiff had advised defense
counsel that she intended to dismiss her case and would agree
to a stipulation for dismissal. [Id. at 1] However,
Plaintiff refused to approve, sign, or respond to a proposed
stipulation for dismissal proposed by defense counsel.
[Id.] Because Plaintiff failed to participate in a
stipulation for dismissal, Defendant filed the instant
Motion. [Id.] Plaintiff has not filed a response to
the Motion, which was due on February 6, 2019. See
D.C.COLO.LCivR 7.1(d).
Additionally,
Plaintiff has refused to respond to Defendant's written
discovery, which was served on November 1, 2018. [#29 at 2]
Plaintiff also did not attend her deposition, which Defendant
noticed for December 11, 2018. [Id.; #29-2]
D.C.COLO.LCivR
41.1 provides:
A judicial officer may issue an order to show cause why a
case should not be dismissed for failure to prosecute or
failure to comply with these rules, the Federal Rules of
Civil Procedure, or a court order. If good cause is not
shown, a district judge or a magistrate judge exercising
consent jurisdiction may enter an order of dismissal with or
without prejudice. Similarly, Federal Rule of Civil Procedure
41(b) “permit[s] 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.” Vanmaanen v. N. Plains Trucking, No.
16-cv-00640-MEH, 2017 WL 491188, at *2 (D. Colo. Feb. 7,
2017) (citing Link v. Wabash R.R. Co., 370 U.S. 616,
630-31 (1962)). In considering dismissal under Rule 41(b)
based on a party's failure to comply with a court order,
courts in the Tenth Circuit have considered the following
five factors, initially set forth in Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992): (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. See Quarrie v. N.M. Inst. of Mining
& Tech., 621 Fed. App'x 928, 931 (10th Cir.
2015). Weighing these factors, the Court recommends that this
case be dismissed.
First,
Defendant has suffered actual prejudice because of
Plaintiff's failures to comply with the Court's rules
and attend Court hearings. Specifically, Defendant continues
to experience delay and uncertainty in the resolution of the
claims against it and the inability to move forward with
discovery. Defendant has also incurred defense fees and costs
in attending hearings that Plaintiff has refused to
participate in, and serving discovery that Plaintiff has
failed to respond to. Second, the amount of interference with
the judicial process is significant as the Court convened a
hearing at which Plaintiff not only failed to appear, but
also during which Plaintiff twice hung up on the Court when
the Court attempted to enable Plaintiff to appear
telephonically. Moreover, Defendant's Motion to Dismiss
for Failure to Prosecute remains unanswered, and despite
agreeing that this case should be dismissed, Plaintiff
refused to sign a stipulated dismissal. Third, Plaintiff is
solely responsible for her failure to participate in
discovery, respond to the instant Motion, and attend Court
hearings. Fourth, the Court previously warned Plaintiff over
three months ago that her failure to participate in the
prosecution of the case would result in the Court issuing an
order to show cause why this case should not be dismissed for
failure to prosecute. [#28] Finally, there does not appear to
be any lesser sanction that would be effective as the Court
has been unable to elicit any response from Plaintiff despite
several attempts and because Plaintiff is refusing to
participate in this litigation in any way. Accordingly, this
Court respectfully RECOMMENDS that this
action be DISMISSED.[1]
---------
Notes:
[1] Within fourteen days after service of
a copy of this Recommendation, any party may serve and file
written objections to the Magistrate Judge's proposed
findings and recommendations with the Clerk of the United
States District Court for the District of Colorado. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla
(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the District Court on
notice of the basis for the objection will not preserve the
objection for de novo review. “[A] party's
objections to the magistrate judge's report and
recommendation must be both timely and specific to preserve
an issue for de novo review by the district court or
for appellate review.” United States v. 2121 East
30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996).
Failure to make timely objections may bar de novo
review by the District Judge of the Magistrate Judge's
proposed findings and recommendations and will result in a
waiver of the right to appeal from a judgment of the district
court based on the proposed findings and recommendations of
the magistrate judge. See Vega v. Suthers, 195 F.3d
573, 579-80 (10th Cir. 1999) (holding that district
court's decision to review magistrate judge's
recommendation de novo despite lack of an objection
does not preclude application of “firm waiver
rule”); Int'l Surplus Lines Ins. Co. v. Wyoming
Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (finding that cross-claimant waived right to appeal
certain portions of magistrate judge's order ...