United States District Court, D. Colorado
ORDER TO SHOW CAUSE
SCOTT
T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This
civil action is before the Court upon Plaintiff's failure
to attend the July 9, 2019 Discovery Hearing. [See
#28] The parties have consented to proceed before the
undersigned United States Magistrate Judge for all
proceedings, including entry of a final judgment. [#9, 10]
Plaintiff,
through counsel, filed this lawsuit on February 11, 2019
asserting causes of action against Defendant pursuant to
state and federal anti-discrimination laws. [#1] On April 15,
2019, the Court entered a Scheduling Order pursuant to which
the parties agreed to make initial disclosures pursuant to
Federal Rule of Civil Procedure 26(a)(1) by March 26, 2019,
and the Court set October 25, 2019 as the deadline to
complete discovery. [#13 at 4, 7] At the Scheduling
Conference, the Court ordered Plaintiff to “supplement
his initial disclosures, including Plaintiff's alleged
disability and place of employment on or before May 6,
2019.” [#12]
On May
31, 2019, counsel for Plaintiff filed a Motion to Withdraw as
Counsel for Plaintiff (the “Motion to Withdraw”),
citing unspecified “[s]ubstantial and irreconcilable
differences of opinion concerning the course and scope of
representation.” [#16 at 1] According to the Motion to
Withdraw, counsel provided notice to Plaintiff of her intent
to withdraw and informed Plaintiff that “he will have
the burden of keeping the Court informed where notices,
pleadings or other papers may be served upon him; and that he
will have the obligation to prepare for all court
proceedings.” [Id.] The Motion to Withdraw
further represented that, “on several occasions via
phone and e-mails, ” Plaintiff had been informed of the
deadline to answer discovery requests served upon Plaintiff
by Defendant. [Id. at 2] On May 31, 2019, the Court
set a hearing on the Motion to Withdraw and ordered Plaintiff
to participate in the hearing. [#17] A copy of the Order
setting the motion hearing was mailed to Plaintiff at the
address provided by Plaintiff's counsel in the Motion to
Withdraw. [#17, 18]
Plaintiff
failed to appear (in person or telephonically) for the Motion
Hearing on June 6, 2019. [#19] During the Motion Hearing,
defense counsel informed the Court that Plaintiff had not
produced the discovery ordered by the Court at the Scheduling
Conference. [Id.] The Court granted the Motion to
Withdraw and set the matter for a Discovery Hearing, which
the Court ordered Plaintiff to attend by telephone.
[Id. at 2] The Court warned Plaintiff that “if
he fail[ed] to participate in the hearing, his failure to
participate may lead to a recommendation that this case be
dismissed for failure to prosecute” and further
reminded Plaintiff “of his duty to comply with
discovery obligations, court orders, and all other court
obligations regarding litigating this case.”
[Id. (emphasis removed)]
On June
20, 2019, the copy of the Court's Order setting the
motion hearing on the Motion to Withdraw was returned as
undeliverable with a notation on the envelope indicating that
Plaintiff no longer works at that address. [#22] The Court
obtained an alternative address for Plaintiff and instructed
the Clerk of Court to mail a copy of the Order to that
alternative address. [#23, 24] On June 25, 2019, the copy of
the Minute Entry from the motion hearing on the Motion to
Withdraw was returned as undeliverable, and the following day
the Clerk of Court mailed a copy of that Minute Entry to the
alternative address. [#25, 26] Despite Plaintiff's former
counsel's advisement to Plaintiff that he had “the
burden of keeping the Court informed where notices, pleadings
or other papers may be served upon him” and the
requirement in D.C.COLO.LCivR 5.1(c) that an unrepresented
party file a notice of any change of name, mailing address,
or telephone number with the Court not later than five days
after the change, Plaintiff has not filed anything with the
Court identifying where he should be served.
The
Court convened the Discovery Hearing on July 9, 2019, but
Plaintiff did not appear. [#28] Pursaunt to D.C.COLO.LCivR
41.1:
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.
Accordingly,
IT IS ORDERED that Plaintiff shall show
cause, if any there be, in writing on or before
August 9, 2019, why this case should not be
dismissed pursuant to D.C.COLO.LCivR 41.1 for (1) failure to
prosecute, (2) failure to participate in the discovery
process and, in particular, to comply with this Court's
Order that Plaintiff supplement his initial disclosures by
May 6, 2019 [#12], (3) failure to provide an updated address
pursuant to D.C.COLO.LCivR 5.1(c), and (4) failure to attend
the June 6, 2019 Motion Hearing and the July 9, 2019
Discovery Hearing.
Plaintiff
is specifically advised that failure to comply with this
Order and timely show cause on or before August 9, 2019 will
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