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Brown v. State

United States District Court, D. Utah

November 13, 2019

FRANK JOSEPH BROWN, Plaintiff,
v.
STATE OF UTAH, Defendant.

          MEMORANDUM DECISION & DISMISSAL ORDER

          TENA CAMPBELL JUDGE UNITED STATES DISTRICT COURT

         BACKGROUND

• October 13, 2017

Complaint filed. (Doc. No. 2.)

• January 16, 2018

Amended Complaint filed. (Doc. No. 7.)

• May 1, 2019

Order entered requiring Plaintiff to within thirty days cure deficient complaint. (Doc. No. 12.)

• May 23, 2019

Plaintiff's motion to stay case based on wish to see Tenth Circuit decision on request for certificate of appealability regarding allegedly related habeas petition denied in this Court. (Doc. No. 13); Brown v. Utah, No. 2:17-CV-826-TS (D. Utah Feb. 27, 2019) (dismissal order).

• July 30, 2019

Denial of certificate of appealability in allegedly related habeas case. Brown v. Utah, No. 19-826 (10th Cir. July 30, 2019) (order denying certificate of appealability).

         The Court has not heard from Plaintiff since May 23, 2019 (more than five months ago), when he filed his motion to stay this case.

         ANALYSIS

         Federal Rule of Civil Procedure 41(b) allows involuntary dismissal of an action “[i]f the plaintiff fails to prosecute or to comply with . . . a court order.” Fed.R.Civ.P. 41(b). The Court may dismiss actions sua sponte for failure to prosecute. Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (stating, though Rule 41(b) requires defendant file motion to dismiss, Rule has long been construed to let courts dismiss actions sua sponte when plaintiff fails to prosecute or comply with orders); see also Link v. Wabash R.R. Co., 370 U.S. 626, 630 (stating court has inherent authority to clear “calendar[] of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief”); Bills v. United States, 857 F.2d 1404, 1405 (10th Cir. 1988) (recognizing dismissal for failure to prosecute as “standard” way to clear “deadwood from the courts' calendars” when prolonged and unexcused delay by plaintiff).

         Generally, “a district court may, without abusing its discretion, [dismiss a case without prejudice] without attention to any particular procedures.” Nasious v. Two Unknown B.I.C.E. Agents at Araphoe County Justice Ctr., 492 F.3d 1158, 1162 (10th Cir. 2007). But, a dismissal without prejudice is effectively a dismissal with prejudice if the statute of limitations has expired on the dismissed claims. Gocolay v. N.M. Fed. Sav. & Loan Ass'n, 968 F.2d 1017, 1021 (10th Cir. 1992). For purposes of this Order only, the Court assumes the statute of limitations has expired on Plaintiff's claims if he were to refile them after dismissal.

         When the dismissal is effectively with prejudice, this Court applies the factors from Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992)--namely, “(1) the degree of actual prejudice to [Defendant]”; (2) “the amount of interference with the judicial process”; (3) the litigant's culpability; (4) whether the court warned the noncomplying litigant that dismissal of the action was a likely sanction; and (5) “the efficacy of lesser sanctions.” Id. at 921 (internal quotation marks omitted). Dismissal with prejudice is proper only when these factors outweigh the judicial system's strong preference to decide cases on the merits. DeBardeleben v. Quinlan, 937 F.2d 502, 504 (10th Cir. 1991). The Ehrenhaus factors are not “a rigid test; rather, they represent criteria for the district court to consider [before] imposing dismissal as a sanction.” Ehrenhaus, 965 F.2d at 921; see also Lee v. Max Int'l, LLC, 638 F.3d 1318, 1323 (10th Cir. 2011) (“The Ehrenhaus factors are simply a non-exclusive list of sometimes-helpful ‘criteria' or guide posts the district court may wish to ‘consider' in the exercise of what must always be a discretionary function.”); Chavez v. City of Albuquerque, 402 F.3d 1039, 1044 (10th Cir. 2005) (describing Ehrenhaus factors as “not exhaustive, nor . . . equiponderant”); Archibeque v. Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172, 1174 (10th Cir. 1995) (“[D]etermining the correct sanction is a fact specific inquiry that the district court is in the best position to make.”).

         The Court now considers the factors as follows:

         Factor 1: Degree of actual prejudice to Defendant. Prejudice may be inferred from delay, uncertainty, and rising attorney's fees. Faircloth v. Hickenlooper, No. 18-1212, 2018 U.S. App. LEXIS 36450, at *5 (10th Cir. Dec. 26, 2018) (unpublished); Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993); see also Auto-Owners Ins. Co. v. Summit Park Townhome Ass'n, 886 F.3d 852, 860 (10th Cir. 2018) (concluding substantial prejudice when plaintiff “sparked months of litigation” and defendants “wasted eight months of litigation”); Riviera Drilling & Exploration Co. v. Gunnison Energy Corp., 412 Fed.Appx. 89, 93 (10th Cir. 2011) (unpublished) (approving district court's observation that “delay would ‘prolong for the defendants the substantial uncertainty faced by all parties pending litigation'”) (citation omitted).

         Reviewing this case's docket, the Court concludes that Plaintiff's neglect does not overtly prejudice Defendant, except that, in general, passage of time can weaken evidentiary support for a position. This factor weighs in favor of dismissal.

         Factor 2: Amount of interference with judicial process. In Jones, the Tenth Circuit concluded that Plaintiff had significantly interfered with the judicial process when he failed to answer a show-cause order or join a telephone conference. Jones, 996 F.2d at 265. Though Jones later argued that the district court could have abated the suit and revisited the status in three to six months, the court noted that abeyance would have delayed the proceedings for the other parties and the court. Id. The court said, “In similar circumstances, we have held that a district court could find interference with the judicial process when the plaintiff ‘repeatedly ignore[s] court orders and thereby hinder[s] the court's management of its docket and its efforts to avoid unnecessary burdens on the court and the opposing party.'” Id. (citation omitted).

         Meanwhile, in Villecco, the Tenth Circuit determined that plaintiff greatly interfered “with the judicial process by failing to provide the court with a current mailing address or an address that he regularly checked; respond to discovery requests; appear at his deposition; list any fact witnesses or otherwise comply with the court's Initial Pretrial Order, or respond to the Defendants' Motion to Dismiss.” Villeco v. Vail Resorts, Inc., 707 Fed.Appx. 531, 533 (10th Cir. 2017); see also Banks v. Katzenmeyer, 680 Fed.Appx. 721, 724 (10th Cir. 2017) (unpublished) (“[H]e did not (1) respond to the order to show cause or (2) notify the court of his change of address as required by the local rules, even though his past actions show he was aware of the requirement.”); Taylor v. Safeway, Inc., 116 Fed.Appx. 976, 977 (10th Cir. 2004) (dismissing under Ehrenhaus when “judicial process essentially ground to a halt when [Plaintiff] refused to respond to either the defendant[s' filings] or the district court's orders”); Killen v. Reed & Carnick, No. 95-4196, 1997 U.S. App. LEXIS 430, at *4 (10th Cir. Jan. 9, 1997) (unpublished) (“Plaintiff's willful failure to comply with the orders of the district court flouted the court's authority and interfered with the judicial process.” (Internal quotation marks and citation omitted.)). “[F]ailure to respond to court orders cannot be ignored.” Davis v. Miller, 571 F.3d 1058, 1062 (10th Cir. 2009).

         Likewise here, Plaintiff's failure to prosecute this case--and specific failure to comply with an order requiring him to timely file an amended complaint, (Doc. No. 12), when his motion to stay was mooted more than three months ago--necessarily interferes with effective administration of justice. The issue here "is respect for the judicial process and the law." See Cosby v. Meadors, 351 F.3d 1324, 1326-27 (10th Cir. 2003). Plaintiff's failure to comply with court orders disrespects the Court and the judicial process. Plaintiff's neglect has caused the Court and staff to spend unnecessary time and effort. The Court's frequent review of the docket and preparation of orders to move this case along have increased the workload of the Court and take its attention away from other matters in which parties have met their obligations and deserve prompt resolution of their issues. "This order is a perfect example, ...


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