United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Fashing United States Magistrate Judge.
MATTER comes before the Court on the sua sponte
order to show cause issued to pro se plaintiff Mihaela
Hristodor. Doc. 28. The Court issued the order to show cause
because Ms. Hristodor failed to attend a telephonic status
conference on June 5, 2017. See id.; see
also Doc. 27. Ms. Hristodor was required to respond to
the order to show cause no later than June 19, 2017. Doc. 28.
The record indicates that the order was mailed to Ms.
Hristodor at her address of record. There is no indication
that Ms. Hristodor did not receive the order to show cause.
Nevertheless, Ms. Hristodor has not responded to that order.
This is the second time Ms. Hristodor has failed to obey an
order of the Court. Ms. Hristodor has not filed anything with
the Court or participated in the prosecution of this case
since her attorney withdrew in April 2017. See Doc.
Court may issue any just orders, including sanctions
authorized by Rule 37(b)(2)(A) (ii)-(vii), if a party fails
to appear at a scheduling or other pretrial conference,
see Fed. R. Civ. P. 16(f), or fails to obey a court
order, see Fed. R. Civ. P. 41(b). Rule 16(f)
“indicates the intent to give courts very broad
discretion to use sanctions where necessary to insure . . .
that lawyers and parties . . . fulfill their high duty to
insure the expeditious and sound management of the
preparation of cases for trial.” Gripe v. City of
Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (quoting
Mulvaney v. Rivair Flying Serv., Inc. (In re
Baker), 744 F.2d 1438, 1440 (10th Cir. 1984) (en banc)).
“It is within a court's discretion to dismiss a
case if, after considering all the relevant factors, it
concludes that dismissal alone would satisfy the interests of
justice.” Ehrenhaus v. Reynolds, 965 F.2d 916,
918 (10th Cir.1992).
imposing dismissal as a sanction, a district court should
evaluate the following factors on the record: “(1) the
degree of actual prejudice to the [other party]; (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 be a
likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions.” Gripe, 312 F.3d at 1188
(summarizing the Ehrenhaus factors). Dismissal as a
sanction under Rule 16(f) should ordinarily be evaluated
under the same factors. See Id. “The factors
do not create a rigid test but are simply criteria for the
court to consider.” Id. (citing
Ehrenhaus, 965 F.2d at 921). Upon analyzing the
Ehrenhaus factors, I recommend that this case be
dismissed as a sanction for failing to appear at the status
conference and failing to obey the Court's order.
Ms. Hristodor's failure to participate has caused
prejudice to defendants. Defendants have expended time and
money attending the status conference, participating in
discovery, and seeking assistance from the Court for
protection from the numerous and often abusive emails from
Ms. Hristodor. See Docs. 17, 19, 20, 21, 26. Second,
Ms. Hristodor's lack of participation has interfered with
the judicial process. The case has been stymied by Ms.
Hristodor's refusal to attend the status conference or
respond to the Court's order. The case cannot move
forward without her participation. Third, Ms. Hristodor alone
is culpable for violating the Court's orders. The Court
granted Ms. Hristodor's attorney's motion to withdraw
from the case on April 27, 2017. Doc. 22. Since then, Ms.
Hristodor has represented herself. The Court vacated the
scheduled settlement conference and set a telephonic status
conference that Ms. Hristodor was required to attend. Doc.
23. The Court scheduled the June 5 status conference at a
status conference on May 2, 2017, at which Ms. Hristodor
appeared personally. See Doc. 24. Ms. Hristodor
therefore had notice of the status conference. Further, the
record indicates that the Court's order setting the June
5 status conference was mailed to Ms. Hristodor. See
Docket entry for Doc. 25. There is no indication that Ms.
Hristodor did not receive the Court's order. Ms.
Hristodor has not provided any reason for failing to attend
the status conference. Fourth, the Court warned Ms. Hristodor
in the order to show cause that her failure to comply or
respond to the order would result in a recommendation to the
presiding judge that her lawsuit be dismissed without
prejudice. Doc. 28 at 2. Despite this warning, Ms. Hristodor
ignored the Court's order and failed to respond,
indicating that lesser sanctions would not be effective.
the Ehrenhaus factors weigh in favor of dismissal, I
recommend that pro se plaintiff Mihaela Hristodor's
complaint be dismissed without prejudice.
Clerk is directed to mail Ms. Hristodor a copy of these
Proposed Findings and Recommended Disposition at her address
PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE
of a copy of these Proposed Findings and Recommended
Disposition, they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. §
636(b)(1)(C). A party must file any objections with the Clerk
of the District Court within the fourteen-day period if that
party wants to have appellate review of the ...