Wallin v. Sygma Network

          REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE [#56]

          S. Kato Crews United States Magistrate Judge

         This Report and Recommendation (“Recommendation”) addresses Defendant Sygma Network's (“Sygma”) Motion to Dismiss for Failure to Prosecute (the “Motion”) [#56].^[1] The Court has reviewed the Motion, Plaintiff Oloyea Wallin's (“Wallin”) Response [#61], the entire case file, applicable law, and held a hearing on the Motion on October 31, 2019 [See #84 (courtroom minutes of hearing)]. For the following reasons, the Court RECOMMENDS that the District Judge GRANT the Motion.

         A. BACKGROUND

         Proceeding pro se, Wallin filed his Complaint alleging Title VII discrimination based on race and color and alleging retaliation in the form of a “constructive discharge.” [#1.] Wallin sued Sygma, Jesse Staley, and Jon Stanley (collectively “Defendants”).^[2] [#1 pp. 2-3.] The following factual allegations are taken as true for purposes of this analysis under Fed.R.Civ.P. 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Sygma hired Wallin as a delivery driver in February 2017. [#1 at p.3.] While employed, Defendants harassed Wallin, an African American, by falsely accusing him of failing to return undelivered products to the warehouse, and by altering, falsifying, and manipulating his work performance documents to portray his performance as “very poor in comparison to his assigned white counterpart.” [Id.] While on bereavement leave, Wallin was discharged from his scheduled route and placed on an on-call status while “his white . . . counterpart was placed on another high paying . . . route.” [Id.] After he reported this treatment to Sygma's human resources department, Defendants retaliated against Wallin by increasing their harassment. Defendants subsequently demoted Wallin, which effectively cut his wages by more than half. [Id.]

         Since filing the Complaint on May 8, 2018, Wallin has exhibited a proclivity for non-compliance with Court orders and discovery deadlines. To document the issues raised by Sygma's Motion, the following description of events are taken from the record.

         1. Wallin's Violation of Orders Related to the Failure to Serve Jon Stanley

         Jon Stanley (“Stanley”) is a named Defendant. [See #1.] However, the United States Marshals Service was unable to serve Stanley using the address provided by Wallin. [#17] On August 9, 2018, Magistrate Judge Scott T. Varholak ordered Wallin “to provide a valid address for [Stanley] on or before August 24, 2018.” [#18 (reminding Wallin that “[i]t is the [pro se] plaintiff's responsibility to provide the United States Marshal with the address of the person to be served.”).] On August 13, 2018, Magistrate Judge Varholak vacated the scheduling conference, in part, because Wallin had yet to provide a proper address for Stanley. [See #19.] Wallin did not meet his court-ordered, August 24 deadline or seek an extension of time.

         After this matter was re-assigned to the undersigned, the Court raised the issue of service on Stanley at the October 30, 2018 Scheduling Conference. [#37 at p.2.] At the Scheduling Conference, Wallin acknowledged that this was not his first-time in civil litigation. [Cf. #37 (Courtroom Minutes for Scheduling Conference).] He also indicated he was not aware that the United States Marshals had not served Stanley, and he requested 14 days to effectuate service. The Court granted Wallin until November 20, 2018 to effectuate service on Stanley by filing a notice with the Court of Stanley's address for the U.S. Marshals to effectuate service by that date or file a Status Report by that date to update the Court on the status of service on Stanley. [Id.] The Court warned Wallin that if he was unable to effectuate service by that date, the Court would recommend Stanley's dismissal. [Cf. id.]

         Wallin missed his court-ordered deadline to file his notice or a status report regarding the status of service on Stanley. He instead filed his notice 13 days late, on December 3, 2018. [#39.] Wallin simultaneously filed a motion asserting excusable neglect for his untimely filing. [#38.] The Court set a January 8, 2019, Status Conference to address the untimely filing. [#44.] Wallin did not appear at the Status Conference. [See #49.] Accordingly, the Court denied Wallin's motion for excusable neglect, and did not order the Marshals to effect service on Stanley.^[3] [Id.]

         2. Wallin's Late Responsive Filings to Motions to Dismiss [#25 and #56]

         On September 28, 2018, Jesse Staley (“Staley”), a Defendant at the time, filed a Motion to Dismiss. [#25.] Wallin failed to respond to Staley's Motion to Dismiss by the October 19, 2018 deadline. [See #37.] The Court raised Wallin's failure to respond at the October 30, 2018 Scheduling Conference. [Id.] Wallin stated that he did not respond because he was unaware of the Motion to Dismiss being filed. The Court ordered defense counsel to email that Motion to Dismiss to Wallin and granted him until November 20, 2018 to respond to the motion. [Id.] Wallin filed his response 21 days late, on December 11, 2018. [#42.]

         On March 26, 2019, Sygma filed the current Motion. [#56.] On April 18, 2019, Sygma filed a Notice of Non-Response and Filing of Supplemental Information [#60] informing the Court of Wallin's failure to respond to the Motion. Wallin then filed his response eleven days later, which was 13 days late. [#61.] The Response did not request that the Court accept the untimely filing or make any attempt to argue excusable neglect.^[4]

         3. The Court Issues an Order to Show Cause [#48]

         After Wallin did not appear at the January 8, 2019, Status Conference, the Court issued an Order to Show Cause “why this case should not be dismissed with prejudice for failure to prosecute, and why the Court should not order sanctions against Mr. Wallin in the form of attorneys fees incurred by Defendants' for the preparation and participation at the Status Conference.” [#48.] The Court ordered Wallin to respond by January 18, 2019. [Id.] This time, Wallin did meet his filing deadline. [See #51.] He stated his reasons for not appearing at the Status Conference were: (1) “that he totally confused the dates for the Status Conference;” and (2) “that he has been undergoing some serious medical issues that also may have contributed to his mental state, which includes his kidney failure and his recent battle with pneumonia . . . .” [Id. at ¶¶2-3.]

         Ultimately, the Court discharged the Order to Show Cause without recommending sanctions against Wallin. [#54.] The Court cautioned Wallin that his medical issues and “mistaking the date of a Court ordered hearing do not excuse Wallin of his duties to prosecute this matter.” [Id. at p.2.] The Court again stated: “[p]ro se parties are obligated to comply with the Federal Rules of Civil Procedure, the Local Rules of this District, and this Court's Practice Standards, and all Court Orders.” [Id. (citing Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2009)).]

         4. Wallin's Pre-Trial Discovery Tardiness

         Sygma served Wallin with its First Set of Discovery Requests (“Discovery Requests”) on December 21, 2018, making his responses due January 22, 2019. [#55 at p. 1.] Wallin failed to respond to the Discovery Requests by the deadline. [Id. at p. 2.] Sygma emailed Wallin on January 30 and February 11, 2019, requesting responses, but Wallin did not respond to either email. [Id.] He finally served his responses to the Discovery Requests 23 days late, on February 14, 2019. [Id.] According to Sygma, the responses did not “include any responsive documents, failed to identify basic categories of responsive information, and failed to respond to several of Sygma's document requests.” [Id.] Sygma served Wallin with a Rule 37 letter to confer over his deficient responses and obtain supplemental information by February 25, 2019. [Id.] However, Wallin did not respond to defense counsel's repeated attempts to confer, which also involved seven total phone and email attempts between March 6 and 20, 2019. [Id. at p. 3.]

         As a result, Sygma filed a Motion to Compel on March 26, 2019. [See generally id.] Wallin did not file a response to the Motion to Compel. He instead filed his own Motion to Compel [#67] on June 12, 2019, and the Court set a Discovery Hearing to address both motions.^[5] [#70.] The Court took the issues raised in the Motions to Compel under advisement at the July 18, 2019 Discovery Hearing, and gave Wallin 10 days to e-mail the Court a copy of the email Wallin argued he timely sent opposing counsel that attached his discovery responses. [#74.] Yet again, Wallin missed his court-ordered deadline. Sygma filed a Notice of Non-Compliance on July 30, 2019. ...