United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE
matter is before the Court in connection with the Order
Granting Motion to Dismiss and Order to Show Cause, filed
June 21, 2017. (Doc. 12.) Counsel for Plaintiff has failed to
file a response to the Court's Order to Show Cause.
Having reviewed the applicable law, the Court finds this
matter should be dismissed.
Haas & Wilkerson Insurance Company (H&W) removed
Plaintiff's state case to this Court on May 4, 2017.
(Doc. 1.) Because Plaintiff's counsel of record, Mr.
James W. Klipstine, Jr., is not a member of the Bar of the
United States District Court for the District of New Mexico,
Judge Carmen Garza entered an Order on May 9, 2017, directing
Mr. Klipstine to either “reapply for membership to the
Bar, ” or to “have another attorney who is a
member of the Bar enter an appearance for Plaintiff.”
(See Doc. 6.) Judge Garza gave Mr. Klipstine a May
23, 2017 deadline to comply with her order. (Id.) To
date, Mr. Klipstine has not complied with the Court's
H&W filed a Motion to Dismiss on May 10, 2017. (Doc. 7.)
Plaintiff never responded to the Motion. (See Doc.
12 at 1.) In its Order granting the Motion to Dismiss, the
Court also entered an Order to Show Cause due to
Plaintiff's failures to comply with Judge Garza's
Order and respond to the Motion to Dismiss. (See
id.) The Court directed Plaintiff to file a response to
the Order to Show Cause no later than July 10, 2017, showing
cause why the case should not be dismissed. (Id. at
5.) The Court notified Plaintiff “that failure to
respond to this Order may result in dismissal without further
notice.” (Id.) Plaintiff has failed to file
to Federal Rule of Civil Procedure 41(b), a district court
may dismiss an action with prejudice if the plaintiff fails
to comply with the Federal Rules of Civil Procedure or any
order of court.” Olsen v. Mapes, 333 F.3d
1199, 1204 (10th Cir. 2003) (internal quotation marks,
brackets, and citation omitted). “A district court may
dismiss an action under Rule 41(b) after finding that”
the following “criteria support a dismissal”:
“‘(1) the degree of actual prejudice to the
defendant; (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.'” Id.
(quotations omitted; alterations in original).
respect to the first factor, the Court finds that the degree
of actual prejudice to the remaining defendants is slight, as
it appears that only one of the defendants has been served,
but has not yet entered an appearance in this action.
(See Doc. 1 ¶¶ 11-12.) “As to the
second factor, the way in which Plaintiff has handled this
case warrants dismissal.” Williams v. BNSF Ry.
Co., No. 13-2128-EFM/TJJ, 2014 WL 2048060, at *3 (D.
Kan. May 19, 2014). “The Court has invested time and
resources in attempting to move the case forward and work
with Plaintiff to ensure his claims are heard in this Court
“-to no avail. The continuing lack of communication and
responses by Plaintiff indicate that more time will not
enable him to participate and prosecute his case.”
third factor also warrants dismissal, as Plaintiffs counsel
has failed to comply with the Court's May 9, 2017 Order,
failed to respond to Defendant H&W's Motion to
Dismiss, and failed to file a response showing cause why this
case should not be dismissed. With respect to the fourth
factor, the Court gave Plaintiff notice that failure to
respond to its Order to Show Cause “may result in
dismissal without further notice.” (Doc. 12 at 5.)
Finally, due to Plaintiffs repeated failures to respond
and/or comply with the Court's orders, it does not appear
that lesser sanctions would be effective.
weighing the five factors, the Court finds that dismissal is
IT IS ORDERED that this case is dismissed in accordance with
Federal Rule of Civil Procedure 41(b) due to Plaintiffs
failures to prosecute the case and to comply with the