United States District Court, D. New Mexico
ROBERT F. SARTORI, Plaintiff,
STEIDER & ASSOCIATES, P.C., and TIMOTHY D. STEIDER, Defendants.
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on the magistrate judge's
Proposed Findings and Recommended Disposition
(“PF&RD”), filed on May 9, 2017. Doc. 67.
Plaintiff Robert Sartori timely filed objections to the
PF&RD on May 22, 2017. Doc. 73. Having reviewed the
submissions of the parties and the relevant law, the Court
overrules the objections and adopts the PF&RD.
magistrate judge issued an Order to Show Cause on April 18,
2017, ordering plaintiff to file a written explanation
showing good cause for his failure to file the Joint Status
Report, and his failure to attend the Rule 16 Initial
Scheduling Conference on April 18, 2017. Doc. 64. The order
warned Mr. Sartori that failure to respond by the May 2, 2017
deadline could result in dismissal of his complaint without
further warning. Id. at 1. Mr. Sartori did not
timely respond to the order to show cause, prompting the
magistrate judge, on May 9, 2017, to issue a PF&RD
recommending dismissal of the case. Doc. 67. Mr. Sartori
filed his untimely response to the order to show cause on May
22, 2017. Doc. 74.
response to the order to show cause, Mr. Sartori claims that
he did not timely receive the Initial Scheduling Order issued
on March 9, 2017 (Doc. 57), or the Order to Show Cause issued
on April 18, 2017 (Doc. 64) due to a “mail
mishap” in which he did not discover a “misplaced
bag of [his] mail” until May 10, 2017. Doc. 74 at 1.
Mr. Sartori further asserts that he had “no idea”
that the Court intended to set a second scheduling
conference, or that it had, indeed, been set. Id. at
41(b) provides that if a plaintiff “fails to prosecute
or to comply with these rules or a court order, a defendant
may move to dismiss the action or any claim against
it.” Fed.R.Civ.P. 41(b). A dismissal under Rule 41(b),
except for lack of jurisdiction, improper venue, or failure
to join a party, “operates as an adjudication on the
merits, ” and thus, a dismissal with prejudice.
Id.; Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1162 (10th Cir. 2007).
“Although the language of Rule 41(b) requires that the
defendant file a motion to dismiss, the Rule has long been
interpreted to permit courts to dismiss actions sua sponte
for a plaintiff's failure to prosecute or comply with the
rules of civil procedure or court's orders.”
Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir.
2003) (citing Link v. Wabash R.R. Co., 370 U.S. 626,
Rule of Civil Procedure 16(f) authorizes the Court to impose
sanctions for failure to appear at a scheduling conference
and for failure to obey any pretrial order:
(1) In General. On motion or on its own, the court may issue
any just orders, including those authorized by Rule
37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails
to appear at a scheduling or other pretrial conference; (B)
is substantially unprepared to participate-or does not
participate in good faith-in the conference; or (C) fails to
obey a scheduling or other pretrial order.
specifically authorizes the Court to dismiss the action as a
sanction. Fed.R.Civ.P. 37(b)(2)(A)(v).
dismissing a lawsuit for discovery violations or for failure
to prosecute, the district court ordinarily considers what
are known as the Ehrenhaus factors. See
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992); Nasious, 492 F.3d at 1162, 1163. The
non-exhaustive Ehrenhaus factors include: “(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 would be a likely sanction
for noncompliance; and (5) the efficacy of lesser
sanctions.” Ehrenhaus, 965 F.2d at 921
(citations and internal quotations omitted).
five factors “do not represent a rigid test” that
a district court must always apply. Id. “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 remain a discretionary
function.” Lee v. Max Intern., LLC, 638 F.3d
1318, 1323 (10th Cir. 2011) (quoting Ehrenhaus, 965
F.2d at 921). However, because of the harshness of a
dismissal, due process requires that the “violations be
predicated upon willfulness, bad faith, or [some] fault of
petitioner rather than inability to comply.”
Archibeque v. Atchison, Topeka & Santa Fe Ry.
Co., 70 F.3d 1172, 1174 (10th Cir. 1995) (internal
citations and quotations omitted).
Court will address the Ehrenhaus factors in deciding
whether to dismiss plaintiff's lawsuit based on
plaintiff's failure to follow the Court's orders.
Actual Prejudice to Defendants
Steider & Associates, P.C. and Timothy Steider
(“defendants”) prepared for and attended the Rule
16 Scheduling Conference held on April 18, 2017. Defendants
also expended time and money to prepare a statement of
opposition to Plaintiff's Motion for Leave to File Late
Joint Status Report (Doc. 76), and to file an Opposition to
Plaintiff's Response to the Court's Order to Show
Cause (Doc. 77). Plaintiff has prejudiced defendants by
unnecessarily delaying the prosecution of his case, and
causing defendants to expend unnecessary time and money.
Ehrenhaus, 965 F.2d at 921 (concluding that district
court did not abuse its discretion ...