United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE
parties in this case have consented to Chief Magistrate Judge
Paul M. Warner conducting all proceedings, including entry of
final judgment, with appeal to the United States Court of
Appeals for the Tenth Circuit. See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. Before the court is Centuri
Construction Group, Inc. and Canyon Pipeline Construction,
Inc.'s (“Canyon”) (collectively,
“Defendants”) motion to dismiss. Plaintiff Jeffery
Hicks (“Plaintiff”) has failed to respond to
Defendants' motion, and the time for doing so has
April 27, 2018, Plaintiff filed his complaint against
Defendants. On July 25, 2018, Plaintiff served his
first set of discovery requests on Defendants. Canyon served
its first set of discovery requests on Plaintiff on July 27,
2018. Defendants responded to Plaintiff's discovery
requests, as required by the Federal Rules of Civil
Procedure, on August 24, 2018. As of the date of
Defendants' motion to dismiss, and despite numerous
requests from Defendants that he do so, Plaintiff had not
submitted any response to Canyon's discovery requests.
Defendants have also made numerous attempts to schedule
October 12, 2018, Plaintiff's counsel filed a motion to
withdraw. The court granted that motion in an order
dated October 15, 2018 (“October 15
Order”). The October 15 Order required Plaintiff or
new counsel to “file a Notice of Appearance within
twenty-one (21) days after entry of” the October 15
Order. Thus, Plaintiff was required to appear or
appoint counsel by November 5, 2018. The October 15 Order
also warned Plaintiff that if he failed to comply with its
terms, he may be subject to sanction under Rule 16(f)(1) of
the Federal Rules of Civil Procedure, including, but not
limited to, dismissal.
November 6, 2018, Defendants' counsel sent a copy of the
October 15 Order to Plaintiff by e-mail and reminded him that
he was now in violation of the October 15
Order. In that e-mail message, counsel also
requested that Plaintiff (1) respond to Canyon's
discovery requests by November 16, 2018, and (2) provide his
availability to be deposed in January 2019. The following
day, Plaintiff simply responded that he was “[i]n the
process of retaining new counsel[.]”
to Defendants, as of the date of their motion to dismiss,
Plaintiff had not responded to Canyon's discovery
requests and had not contacted Defendants' counsel.
Furthermore, as of the date of this order, Plaintiff has
failed to comply with the October 15 Order.
41(b) of the Federal Rules of Civil Procedure provides that
“[i]f the plaintiff fails to prosecute or to comply
with . . . a court order, a defendant may move to dismiss the
action or any claim against it.” Fed.R.Civ.P. 41(b);
see also Espinoza v. State Farm Fire, No.
1:13-CV-00057 DN, 2013 WL 11326736, at *1 (D. Utah Dec. 19,
2013) (granting motion to dismiss filed 7 days after the
21-day deadline to appear or appoint counsel had expired and
dismissing complaint with prejudice).
has failed to submit responses to Canyon's first set of
discovery requests, despite the fact that such responses were
due long ago. Moreover, the October 15 Order required
Plaintiff or new counsel to “file a Notice of
Appearance within twenty-one (21) days after entry of”
the October 15 Order. The October 15 Order also warned
Plaintiff that his failure to follow its terms could result
in dismissal of his case. That 21-day deadline expired
more than two months ago, and Plaintiff still has not filed
the Notice of Appearance required by the October 15 Order.
Finally, Plaintiff did not file any response to
Defendants' motion to dismiss, which provides a basis for
the court to grant the motion. See DUCivR 7-1(d)
(“Failure to respond timely to a motion, other than for
summary judgment, may result in the court's granting the
motion without further notice.”).
those reasons, IT IS HEREBY ORDERED that Defendants'
motion to dismiss is GRANTED and that this action is
DISMISSED WITH PREJUDICE.