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Larsen v. Allen

United States District Court, D. Utah, Central Division

January 12, 2018


          Clark Waddoups District Judge



         Pro se 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[1] RECOMMENDS the District Judge dismiss Mr. Larsen's case for failure to prosecute.


         Mr. 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.)

         On June 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.


         Federal 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.”[2] 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 decision).

         The 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)).

         The 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.

         1. Prejudice to Defendants

         Mr. 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 ...

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