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Allred v. Pacificorp

United States District Court, D. Utah, Central Division

June 25, 2018

PHILLIP ALLRED, et al., Plaintiffs,
v.
PACIFICORP, dba ROCKY MOUNTAIN POWER COMPANY, an Oregon Company, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING [224] MOTION TO DISMISS (REMAINING BROWN PLAINTIFFS)

          David Nuffer United States District Judge

         Defendant Pacificorp d/b/a Rocky Mountain Power Company filed a motion to dismiss a group of named plaintiffs (“Motion to Dismiss”).[1] On April 24, 2018, the Motion to Dismiss was taken under advisement and the affected plaintiffs, and any other concerned party, were afforded 28 days to respond to the Motion to Dismiss.[2]

         The plaintiffs at issue (referred to as the “Brown Plaintiffs”) were previously represented by Mr. Russell Cline. On October 19, 2015, Mr. Cline was disqualified from the lawsuit.[3] The litigation was stayed for twenty-one (21) days and the Brown Plaintiffs were ordered to enter an appearance pro se or appoint counsel to represent them.[4] Mr. Cline was also ordered to personally send the Brown Plaintiffs notice of the court's order.[5] On November 5, 2015, Mr. Cline did so.[6] Two of the Brown Plaintiffs complied with the court's order and appeared in the case.[7] Other Brown Plaintiffs negotiated directly with Defendant to settle their claims.[8]However, almost two and a half years have passed and the remaining Brown Plaintiffs have not appeared or appointed counsel in the case. The remaining Brown Plaintiffs were served with a copy of the Motion to Dismiss.[9] Mr. Cline filed a response to the Motion to Dismiss.[10] D.W. Crosby, a non-party, also lodged an objection to the Motion to Dismiss.[11] Defendant replied.[12]None of the remaining Brown Plaintiffs have filed a response, or otherwise responded to the Motion to Dismiss.

         After reviewing the filings and relevant authority, the Motion to Dismiss[13] is GRANTED for the reasons set forth below.

         DISCUSSION

         An action may be dismissed, with or without prejudice, [14] “[i]f the plaintiff fails to prosecute or to comply with these [procedural] rules or a court order.”[15] The power to invoke this sanction is inherent in the court and “is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.”[16] “Dismissal for failure to prosecute should be imposed only after careful exercise of judicial discretion. Nonetheless, dismissal is an appropriate disposition against a party who disregards court orders and fails to proceed as required by court rules.”[17] The following five factors should be considered when determining whether to dismiss a plaintiff's claims:

(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 likely be a sanction for noncompliance; and (5) the efficacy of lesser sanctions.[18]
Each of these factors weigh in favor of dismissal.

         First, the remaining Brown Plaintiffs' behavior has caused actual prejudice to Defendant. Defendant has a legitimate interest in bringing this matter to closure within a reasonable time.[19]The remaining Brown Plaintiffs' failure to appear and pursue their claims has caused unnecessary delay and costs upon Defendant.

         The second factor is also met. Through their untimeliness and failure to respond to the court's order, the remaining Brown Plaintiffs have disregarded the court's authority and the need for a just, speedy and inexpensive determination of this action. Their inaction impedes the court's ability to manage its docket and administer orderly justice.[20]

         Third, the remaining Brown Plaintiffs' culpability is uncontroverted. For over two years, they have taken no action to prosecute their case. They alone are responsible for their failure to appear and disobedience of the court's order.[21]

         Fourth, the remaining Brown Plaintiffs were warned in the court's order disqualifying Mr. Cline that “[f]ailure to enter an appearance pro se or of an attorney to file a notice of appearance . . . could result in dismissal of that Plaintiff's case.”[22] Mr. Cline's November 2015 notice to the Brown Plaintiffs reiterated the warning:

Mr. Cline no longer represents you in this case. You have until Friday, November 20, 2015, to obtain a new attorney or attorneys to represent you in this case or to file a notice that you intend to appear pro se (without an attorney). Failure to enter an appearance pro se or have an attorney file a notice of appearance on your behalf could result in dismissal of your case. A copy of the current scheduling order for this case is attached to this notice and contains deadlines relevant to your case. The Court has stayed the case until November 20, 2015.[23]

         Although Mr. Cline no longer represents the remaining Brown Plaintiffs, he nonetheless asserts that the remaining Brown Plaintiffs were not provided sufficient notice that their claims may be dismissed.[24] However, “'constructive notice-that is, notice (1) without an express warning and (2) objectively based upon the totality of the circumstances (most importantly, the trial court's actions or words)' is sufficient.”[25] The remaining Brown Plaintiffs have been sufficiently warned in advance that dismissal of their claims would be a likely sanction for failure to appear or appoint counsel. In addition to the notices sent by the court and Mr. Cline, the remaining Brown also received a copy of the Motion to Dismiss that provided further warning.

         Finally, dismissal is in the interest of justice. Plaintiffs have an obligation to prosecute their claims and to keep in touch with progress of the case.[26] Here, the remaining Brown Plaintiffs have failed to take even the most preliminary steps of prosecuting this case. Despite having ample time to do so, the remaining Brown Plaintiffs have not appeared or otherwise responded to contest dismissal of their claims. No. appropriate lesser sanctions have been ...


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