United States District Court, D. New Mexico
STATE OF NEW MEXICO, ex rel., HECTOR BALDERAS, Attorney General of New Mexico, Plaintiffs,
REAL ESTATE LAW CENTER, PC, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDED
FASHING UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on three sua sponte
orders to show cause issued to pro se defendant Erikson
Davis. Docs. 31, 52, 87. The Court issued the first order to
show cause on January 4, 2018, because Mr. Davis failed to
attend a telephonic status conference scheduled on that date.
Doc. 31 (“first order”). In the first order, the
Court warned Mr. Davis that “[f]ailure to comply with
this Order shall constitute an independent basis for
sanctions.” Id. at 2. Mr. Davis was required
to respond to the first order by January 26, 2018, but failed
to do so. Doc. 52 at 2.
Court issued the second order to show cause because Mr. Davis
failed to appear at a scheduling conference on March 8, 2018.
Doc. 52 (“second order”). The second order
required Mr. Davis “to show cause in writing no later
than Friday, April 3, 2018, as to why the Court should not
impose sanctions for his failure to appear at both the
January 4, 2018, status conference and the March 8, 2018,
scheduling conference.” Id. at 2. The Court
observed that “it appears that Defendant Davis is no
longer meaningfully participating in this lawsuit.”
Id. The second order further warned Mr. Davis that
“failure to comply with this Order shall constitute an
independent basis for sanctions and may result in him being
held in contempt of court or default judgment being entered
against him.” Id. Mr. Davis had through April
3, 2018, to respond to the second order and failed to do so.
Court issued a third order to show cause to Mr. Davis because
he failed to attend a telephonic status conference scheduled
for October 17, 2018. Doc. 87 (“third order”).
The third order required that Mr. Davis “provide the
Court with a written explanation showing good cause why he
should not be sanctioned for failing to attend the previously
scheduled status conference, on or before October 31,
2018.” In the third order, the Court noted that Mr.
Davis had failed to attend two prior court hearings and
failed to respond to two previous orders to show cause.
Id. at 1. Once again, the Court observed that
“[i]t appears that Mr. Davis is no longer meaningfully
participating in this lawsuit.” Id. Thus, the
Court warned Mr. Davis that “the failure to comply with
this order may result in sanctions up to and including
payment of attorney's fees and costs, and likely will
result in a recommendation to the district judge to enter
default judgment against Mr. Davis without further
is no indication that Mr. Davis did not receive all three
orders to show cause. Nevertheless, Mr. Davis failed to
respond to all of the orders. All told, Mr. Davis has failed
to comply with 6 of the Court's orders-the orders to
appear at pretrial conferences (Docs. 28, 30, 84) and the
orders to show cause (Docs. 31, 52, 87). Mr. Davis has not
filed anything with the Court or participated in this case
since July 15, 2017. See Doc. 24.
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). 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)).
Rule 37 permits a court to impose a number of sanctions for a
party's failure to comply with a court's orders,
including rendering a default judgment against the
disobedient party. Fed.R.Civ.P. 37(b)(2)(A)(vi). “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 default judgment 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). Default judgment as a sanction
under Rules 16(f) and 37(b)(2)(C) should be evaluated under
the same factors. Atlas Res., Inc. v. Liberty Mut. Ins.
Co., 291 F.R.D. 638 (D.N.M. 2013) (applying the
Ehrenhaus factors to plaintiff's request for
sanctions that amount to default judgment against defendant);
Colley v. T-Mobile USA, Inc., No. 15-cv-0695-WJ-KBM
(D.N.M. 2016) (dismissing case where plaintiff failed to
participate meaningfully). “The factors do not create a
rigid test but are simply criteria for the court to
consider.” Gripe, 312 F.3d at 1188.
case, all of the factors weigh in favor of imposing default
judgment against Mr. Davis. First, Mr. Davis' failure to
participate has caused a high degree of prejudice to
plaintiff and the other parties. Mr. Davis has failed to obey
several orders of the Court. He failed to attend two
scheduled status conferences and a scheduling conference. Mr.
Davis failed to participate in the meet and confer or
contribute to the joint status report as ordered by the
Court. See Docs. 30 at 1; 66 at 2. Mr. Davis further
failed to respond to three orders to show cause. Plaintiff
and the other defendants have expended time and money
attending the pretrial conferences. In addition, plaintiff
has been forced to file a motion for sanctions because of Mr.
Davis' failure to participate. See Doc.
Mr. Davis' lack of participation interferes with the
judicial process. The case has been stymied by Mr. Davis'
refusal to respond or participate. Plaintiff has been
deprived of information necessary to prosecute its claims.
Third, Mr. Davis is culpable for violating the Court's
orders. There is no indication that he did not receive the
Court's orders, and no explanation as to why he has
refused to abide by them. Finally, Mr. Davis was warned
multiple times that sanctions-including default
judgment-could be imposed. Despite these warnings, Mr. Davis
has ignored the orders of this Court, indicating that lesser
sanctions would not be effective.
the Ehrenhaus factors weigh in favor of default
judgment, I recommend that the Court enter default judgment
against Erikson Davis on all issues of liability, reserving
the issues of relief, such as disgorgement, restitution, and
civil penalties, for further hearing or trial.
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).
Written objections must be both timely and specific. United
States v. One Parcel of Real Prop., With Buildings,
Appurtenances, Improvements, & Contents, Known as 2121 E.
30th St., Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir.
1996). 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 proposed findings and
recommended disposition. Failure to file timely and specific
objections will result in waiver of de novo review by a
district or appellate court. In other words, if no objections
are filed, no appellate review will be allowed.
 This proposed finding and recommended
disposition does not specifically address plaintiffs'
Motion for Sanctions (Doc. 66) filed April 23, 2018. I
recommend, however, that the Court impose the sanctions
requested in plaintiff's motion. Should the Court adopt
these recommendations, ...