United States District Court, D. Colorado
ORDER
SCOTT
T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This
civil action is before the Court upon Plaintiff's failure
to respond to this Court's Order to Show Cause why this
case should not be dismissed pursuant to D.C.COLO.LCivR 41.1,
dated July 10, 2019. [#29] Plaintiff's response was due
by August 9, 2019. [See id.] 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] On July 10, 2019, this Court
entered an Order to Show Cause pursuant to D.C.COLO.LCivR
41.1, directing Plaintiff to show cause, if any there be, in
writing on or before August 9, 2019, why this case should not
be dismissed 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. [#29] Plaintiff was
specifically advised that failure to comply with that Order
and timely show cause on or before August 9, 2019 would
result in an Order of dismissal of this action.
[Id.]
Pursuant
to Federal Rule of Civil Procedure 41(b), “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” “Although the language of
Rule 41(b) requires that the defendant file a motion to
dismiss, the Rule has long been interpreted to permit courts
[as here] to dismiss actions sua sponte for a plaintiff's
failure to . . . comply with the rules of civil procedure or
court's orders.” Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2 (10th Cir.
2007) (alterations in original) (quotation omitted). In
considering dismissal under Rule 41(b), courts in the Tenth
Circuit have weighed 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.Appx. 928, 931
(10th Cir. 2015). Weighing these factors, the Court easily
concludes that this case should be dismissed.
First,
Defendant has suffered actual prejudice because of
Plaintiff's failures to comply with the Court's rules
and orders. In addition to failing to update the Court with
his address [##22-26], Plaintiff also failed to serve
Defendant with initial disclosures as ordered by the Court
[#12]. Plaintiff thus has prejudiced Defendant by failing to
provide Defendant necessary information about his claims and
participate in the discovery process and thereby interfered
with Defendant's ability to defend this lawsuit. As a
result, Defendant continues to experience delay and
uncertainty in the resolution of the claims against it.
Second,
the amount of interference with the judicial process is
significant as the Court is unable to communicate with
Plaintiff or convene hearings because of Plaintiff's
failure to provide a valid address. Third, Plaintiff is
solely responsible for his failure to update his address and
participate in discovery.
Fourth,
the Court previously warned Plaintiff that his failure to
comply with the Court's Order to Show Cause and timely
show cause on or before August 9, 2019 would result in an
Order of dismissal of this action. [#29] Finally, there does
not appear to be any lesser sanction that would be effective
as neither defense counsel nor the Court has been able to
elicit any response from Plaintiff in over two months and
neither has any means of contacting Plaintiff.
Accordingly,
it is ORDERED that this ...