United States District Court, D. Utah, Central Division
Waddoups District Judge
REPORT AND RECOMMENDATION
J. FURSE UNITED STATES MAGISTRATE JUDGE
Plaintiff James Harvey Larsen, proceeding in forma
pauperis, initiated this civil rights action against
Defendants Kevin K. Allen, James Swink, Tony Baird, and
Spencer Walsh on December 13, 2015. (ECF No. 3.) Mr. Larsen
failed to comply with the Court's June 13, 2016 Order
(ECF No. 5) requiring him to provide service addresses for
the Defendants, and its October 5, 2017 Order (ECF No. 6)
requiring him to show cause why his case should not be
dismissed for failure to prosecute. For the reasons addressed
below, the undersigned RECOMMENDS the District Judge dismiss Mr.
Larsen's case for failure to prosecute.
Larsen initiated the present action on December 31, 2015.
(ECF No. 3). On January 6, 2016, the Court granted Mr. Larsen
leave to proceed in forma pauperis pursuant to 28
U.S.C. 1915. (ECF No. 2.) Mr. Larsen's Complaint alleges
that the Defendants-a Utah district court judge and three
Cache County attorneys-violated his civil rights by denying
him due process and a speedy trial. (ECF No. 3.) Mr. Larsen
seeks $500, 000 in damages. (Id. at 6.)
13, 2016, the Court issued an Order requiring Mr. Larsen to
file by June 27, 2016 a notice containing the Defendants'
addresses and the addresses of the Defendants' registered
agent or other person authorized to accept service of
process. (ECF No. 5.) The Order also directed the Clerk of
Court to prepare a summons for the Defendants after Mr.
Larsen supplied the necessary information regarding where to
serve the Defendants, and further directed the United States
Marshals Service to then serve a completed summons, copy of
the Complaint, and a copy of the Order on the Defendants.
(Id.) Mr. Larsen failed to supply the requested
information or otherwise respond to the Court's Order.
Accordingly, on October 5, 2017, the Court ordered Mr. Larsen
to show cause why the case should not be dismissed for
failure to prosecute. (ECF No. 6.) The Order directed Mr.
Larsen to respond in writing no later than October 19, 2017
and inform the Court as to the status of the case and his
intentions to proceed. (Id.) The Order warned Mr.
Larsen that failure to respond to the Order “will
result in a recommendation that the case be dismissed.”
(Id.) Mr. Larsen failed to respond to the Order. Mr.
Larsen has not filed anything in this case since initiating
the action on December 31, 2015.
Rule 41(b) permits a court, in its discretion, to dismiss a
case “[f]or failure of the plaintiff to prosecute or to
comply with [the Federal Rules of Civil Procedure] or any
order of court.” Fed.R.Civ.P. 41(b); see 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.”) The District of Utah Local Rules also state:
The court may issue at any time an order to show cause why a
case should not be dismissed for lack of prosecution. If good
cause is not shown within the time prescribed by the order to
show cause, the court may enter an order of dismissal with or
without prejudice, as the court deems proper.
DUCivR 41-2. Dismissing a case with prejudice for failure to
prosecute constitutes an extreme sanction. See
Zenati v. Echostar, Inc., 203 F.3d 837, 2000 WL
43719 at *1 (10th Cir. Jan. 20, 2000) (unpublished table
Tenth Circuit requires consideration of five criteria when
determining whether to dismiss a case with prejudice pursuant
to Rule 41(b): “‘(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.'” Mobley v. McCormick, 40 F.3d
337, 340 (10th Cir. 1994) (quoting Ehrenhaus v.
Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)); see
also AdvantEdge Bus. Grp. v. Thomas E. Mestmaker &
Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009)
(holding that a district court should ordinarily consider the
Ehrenhaus factors when dismissing a case with
prejudice because it is a “harsh remedy”).
However, “[w]hen dismissing a case without prejudice,
‘a district court may, without abusing its discretion,
enter such an order without attention to any particular
procedures.'” AdvantEdge, 552 F.3d at 1236
(quoting Nasious v. Two Unknown B.I.C.E. Agents, 492
F.3d 1158, 1162 (10th Cir. 2007)).
undersigned recommends that the Court dismiss this action
without prejudice but nevertheless addresses each of the
Ehrenhaus factors in turn. These factors weigh in
favor of dismissing this action.
Prejudice to Defendants
Larsen's failure to prosecute this case may not have
prejudiced Defendants. The Defendants have not been served
and have not expended any time or resources defending against
the case. See CJackson v. Glazed Investments,
LlC, No. 07-cv-00421-WDM-CBS, 2007 WL 3232236, at *3 (D.
Colo. Oct. 30, 2007) (unpublished) (finding “no actual
prejudice to the Defendant, as it has not yet been
served.”). However, delay in pursuing a case coupled
with the lack of notification to the ...