United States District Court, D. Colorado
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. ...