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Sartori v. Steider & Associates, P.C.

United States District Court, D. New Mexico

October 19, 2017

ROBERT F. SARTORI, Plaintiff,
v.
STEIDER & ASSOCIATES, P.C., and TIMOTHY D. STEIDER, Defendants.

          ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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.

         The 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.

         In his 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 1-2.[1]

         Legal Standard

         Rule 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, 630-31 (1962)).

         Federal 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.

         Rule 37 specifically authorizes the Court to dismiss the action as a sanction. Fed.R.Civ.P. 37(b)(2)(A)(v).

         Before 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).

         These 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).

         Discussion

         The 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.

         1. Actual Prejudice to Defendants

         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 ...


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