United States District Court, D. Utah
MEMORANDUM DECISION & DISMISSAL ORDER
CAMPBELL JUDGE UNITED STATES DISTRICT COURT
• 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).
Court has not heard from Plaintiff since May 23, 2019 (more
than five months ago), when he filed his motion to stay this
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).
“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
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.”).
Court now considers the factors as follows:
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).
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.
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.
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).
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