United States District Court, D. Utah
MEMORANDUM DECISION & DISMISSAL ORDER
BENSON JUDGE UNITED STATES DISTRICT COURT
April 5, 2018 Petitioner submitted federal habeas-corpus
petition. (Doc. No. 1.)
February 19, 2019 Petitioner's motion for appointed
counsel denied and motion for service of process granted.
(Doc. No. 4.) Respondent ordered to answer Petition within
forty-five days and Petitioner ordered to respond to answer
within thirty days of answer's filing. (Id.)
July 2, 2019 Respondent's Motion to Dismiss filed. (Doc.
October 24, 2019 Petitioner ordered to within thirty days
show cause why action should not be dismissed for failure to
respond to Motion to Dismiss. (Doc. No. 12.)
has not contacted the Court since he filed his petition on
April 15, 2018 (more than twenty months ago).
Rule of Civil Procedure 41(b) allows involuntary dismissal of
an action “[i]f the [petitioner] fails to prosecute or
to comply with . . . a court order.” Fed.R.Civ.P.
41(b). This Court may dismiss actions sua sponte for
failure to prosecute. Olsen v. Mapes, 333 F.3d 1199,
1204 n.3 (10th Cir. 2003) (“Although the language of
Rule 41(b) requires that the [respondent] file a motion to
dismiss, the Rule has long been interpreted to permit courts
to dismiss actions sua sponte for a
[petitioner's] failure to prosecute or comply with . . .
court 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)
(“Dismissal for failure to prosecute is a recognized
standard operating procedure in order to clear the deadwood
from the courts' calendars where there has been prolonged
and unexcused delay.”).
determining whether to dismiss this action, the Court applies
the factors from Ehrenhaus v. Reynolds, 965 F.2d 916
(10th Cir. 1992)--i.e., “(1) the degree of actual
prejudice to [Respondent]”; (2) “the amount of
interference with the judicial process”; (3) the
litigant's culpability; (4) whether the noncomplying
litigant was warned that dismissal was a likely sanction; and
(5) “the efficacy of lesser sanctions.”
Id. at 921 (internal quotation marks omitted);
see also Davis v. Miller, 571 F.3d 1058, 1061 (10th
Cir. 2009) (applying Ehrenhaus factors in habeas
case). Dismissal with prejudice is appropriate only when
these factors overshadow 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.”).
1: Degree of actual prejudice to Respondent.
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).
the docket here, the Court concludes that Petitioner's
neglect prejudices Respondent, who has spent time defending
this lawsuit. Respondent has adhered to the Order, (Doc. No.
4), to file a response, (Doc. No. 11). The Motion to Dismiss
thoroughly recites the facts and law, analyzes the issues,
and provides seventeen relevant exhibits in support.
(Id.) This apparently took Respondent considerable
time and resources--and for naught as Petitioner has been
preparing his Motion to Dismiss and exhibits, Respondent has
wasted over ten months of litigation. To let the case proceed
when Petitioner has not met his duty may make Respondent
spend more unnecessary time and money to defend a case that
Petitioner seems to have no interest in pursuing. This factor
weighs toward dismissal. See Kalkhorst v. Medtronic,
Inc., No. 18-cv-580-KLM, 2018 U.S. Dist. LEXIS 215598,
at *8 (D. Colo. Dec. 19, 2018); seealso
Tolefree v. Amerigroup Kan., Inc., No. 18-2032-CM-TJJ,
2018 U.S. Dist. LEXIS 195448, at *5 (D. Kan. Nov. 15, 2018)
(“Defendants have had plaintiff's allegations
pending in an open court case for nearly ten months, with no
end in sight. Plaintiff, on the other hand, has shown little
interest in pursuing her claims or following court
orders.”); Oliver v. Wiley, No. 09-cv-441-PAB,
2010 U.S. Dist. LEXIS 92836, at *5 (D. Colo. Aug. 18, 2010)
(“Applicant's failure to provide the Court with a
current address . . . and ...