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Antonopoulos v. Olguin-Fresquez

United States District Court, D. Colorado

May 29, 2019

JOHN S. ANTONOPOULOS, Plaintiff,
v.
RACHEL OLGUIN-FRESQUEZ, CYNTHIA JONES, CAROLYN WHIPPO, STEPHEN POTTS, BRYAN GARRETT, RANDY WILLIAMS, STEVE GERMILLION, STANTON GOULD, KEITH MONTAG, JOHN BRYAN, STEPHANIE FITZGERALD, RODRIGUEZ, JON WALKER, DAVE STRALEY, JOEL BUEHRLE, CHARITY-GRIMSLEY-HINKLEY, Defendants.

          ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          NINA Y. WANG, MAGISTRATE JUDGE

         This matter comes before the court on the Order to Show Cause dated May 7, 2019. See [#43]. This court considers this matter pursuant to 28 U.S.C. § 636(b) and the Order Referring Case dated February 8, 2019 [#4]. For the following reasons, this court respectfully RECOMMENDS that this civil action be DISMISSED without prejudice pursuant to D.C.COLO.LCivR 41.1 for Plaintiff John S. Antonopoulos's (“Plaintiff” or “Mr. Antonopoulos”) failure to prosecute, and further that the pending Motions to Dismiss be DENIED AS MOOT, subject to re-filing if appropriate; and this court ORDERS that the Motions to Stay are GRANTED pending the resolution of this Recommendation.

         BACKGROUND

         Plaintiff initiated this action by filing his pro se Complaint on February 7, 2019, see [#1], and he has since filed an Amended Complaint as a matter of course, see [#6]. As Defendants, Plaintiff names several state actors, including state court judges, officers of the Clear Creek County District Attorney's office, officers of the Clear Creek Sheriff's Department, and a state health professional, alleging that each violated Plaintiff's constitutional rights when Plaintiff was arrested and prosecuted in Clear Creek County. See generally [#6]. This court originally set a Status Conference for April 16, 2019, but given the extension of time granted to several Defendants to respond or answer to the Amended Complaint, the undersigned reset the Status Conference for May 6, 2019. See [#16]. There are currently four Motions to Dismiss pending before this court for recommendation which represent all the named Defendants' responses to the Amended Complaint, see [#28; #30; #31; #33], as well as three Motions to Stay proceedings until the court disposes of the Motions to Dismiss, see [#36; #38; #40].

         On the morning of May 6, Mr. Antonopoulos did not appear for the Status Conference. See [#42]. This court contacted Mr. Antonopoulos directly, and he explained that he would not participate in the Status Conference. See [id.]. Thus, the court apprised defense counsel on the record that it would not set a schedule in this matter until after Plaintiff has responded to and discharged a forthcoming Order to Show Cause. See [id.]. This court also provided Plaintiff until May 19 and 24, 2019, respectively, to respond to the Motions to Dismiss and Motions to Stay. See [#35; #42]. And on May 7, 2019, this court issued an Order to Show Cause for lack of prosecution, directing Mr. Antonopoulos to show cause in writing why this court should not recommend dismissal of this matter given Plaintiff's failure to prosecute and comply with an Order of the court. See [#43]. Mr. Antonopoulos has not responded to the Order to Show Cause in the time provided.

         ANALYSIS

         Local Rule of Civil Practice 41.1, D.C.COLO.LCivR, provides:

A judicial officer may issue an order to show cause why a case should not be dismissed for lack of prosecution or for failure to comply with these rules, the Federal Rules of Civil Procedure, or any court order. If good cause is not shown within the time set in the show cause order, a district judge or a magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice.

         The Order to Show Cause directed Mr. Antonopoulos to respond in writing by May 24, 2019, articulating why this court should not recommend dismissal of this action for failure to prosecute and to appear for the court-ordered Status Conference. See [#43]. This court specifically advised Mr. Antonopoulos that his “failure to comply with this Order to Show Cause will result in this court recommend[ing] dismissal of this action.” [Id. at 3 (emphasis in original)].

         Mr. Antonopoulos has not responded to the Order to Show Cause. Moreover, nothing on the docket indicates that the court's Orders are not deliverable to Plaintiff at the address provided. Thus, this court presumes that Mr. Antonopoulos received proper notice of the Order to Show Cause yet has not responded in the time provided, warranting dismissal of this civil action for lack of prosecution. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007) (providing that when dismissing a case without prejudice, “a district court may, without abusing its discretion, enter such an order without attention to any particular procedures.”); see also Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (“A 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.”).

         Also pending before this court are four Motions to Dismiss and three Motions to Stay this matter. See [#28; #30; #31; #33; #36; #38; #40]. Given Mr. Antonopoulos's failure to respond to the Order to Show Cause and this court's conclusion that dismissal without prejudice is appropriate, this court respectfully RECOMMENDS that the Motions to Dismiss be DENIED AS MOOT, subject to re-filing if appropriate. See Echenique v. Goodwill Indus. of Denver, No. 13CV00556-PAB-MJW, 2014 WL 459776, at *6 (D. Colo. Feb. 4, 2014) (recommending that the pending motions to dismiss be denied as moot given the court's conclusion that dismissal for failure to prosecute was warranted). Relatedly, because of this court's Recommendation to dismiss this civil action for failure to prosecute and because the Motions to Stay involve questions of immunity, this court GRANTS the Motions to Stay pending the resolution of this Recommendation. See Burkitt v. Pomeroy, No. 15-CV-02386-MSK-KLM, 2016 WL 696107, at *1 (D. Colo. Feb. 22, 2016) (“Questions of jurisdiction and immunity should be resolved at the earliest stages of litigation, so as to conserve the time and resources of the Court and the parties.”); Chesser v. Dir. Fed. Bureau of Prisons, No. 15-CV-01939-NYW, 2016 WL 1170448, at *6 (D. Colo. Mar. 25, 2016) (noting that the court has discretion to stay discovery, and concluding that a stay was warranted “until the court and the Parties have a firm understanding of what issues will proceed in this matter.”).

         CONCLUSION

         For the reasons stated herein, this court respectfully RECOMMENDS that:

         (1) This civil action be DISMISSED without prejudice pursuant to D.C.COLO.LCivR 41.1 for Plaintiff's failure to prosecute and ...


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