United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DISMISSING CASE PURSUANT
TO RULE 41(B).
matter comes before the Court on an Order to Show Cause Why
Case Should Not Be Dismissed with Prejudice (Doc.
35), and on Defendants' Motion to Dismiss
Plaintiff's Claims for Continued Non-Participation of
Plaintiff in Case Management and Discovery, to Include
Plaintiff's Failure to Appear for his Own Deposition,
filed November 16, 2018 (Doc. 28). The Court
issued the Order to Show Cause because Plaintiff failed to
comply with Court orders and failed to prosecute this case or
respond to dispositive motions. Plaintiff failed to respond
to or comply with the Order to Show Cause. Therefore,
Defendants' Motion is well-taken and is
GRANTED, and this case is DISMISSED
filed his complaint in state court on December 14, 2017.
Doc. 1. Plaintiff alleges that on December
17, 2015, Defendants violated his New Mexico constitutional
rights by using excessive force during a traffic stop and
discriminating against him based on age. Doc.
1. Defendants removed this case to this Court on
January 12, 2018. Id.
States Magistrate Judge Laura Fashing held a Rule 16
scheduling conference on March 2, 2018. Plaintiff failed to
appear. Plaintiff also failed to participate in the meet and
confer or cooperate in preparing the Joint Status Report.
Fashing issued an order to show cause. Doc.
9. The order to show cause directed Plaintiff to
provide a written explanation showing good cause why he
should not be sanctioned. The order specified that “the
failure to comply with this order may result in a
recommendation that the Court dismiss Mr. Walck's
complaint without further warning.”
Fashing issued a second order to show cause on March 15,
2018, but it appears that Defendant's response to the
first order to show cause arrived that same day. Doc.
10. That second order to show cause contained the
same warning that “failure to comply with this order
may result in a recommendation that the court dismiss Mr.
Walck's complaint without further warning.”
explained in his response that he had approached four
different law firms to take his case, but all refused.
Notably, Plaintiff attached a declination letter from one of
those attorneys, who warned him that he had failed to attend
a Rule 16 conference or follow Court orders, and that he was
still bound to attend his hearings even while searching for
attended a subsequent scheduling conference and at the
hearing United States Magistrate Judge Laura Fashing accepted
his explanations and entered an order providing as follows:
“The Court accepts Mr. Walcks explanation and finds
that Mr. Walck has fulfilled the requirements in the Orders
to Show Cause to the Court's satisfaction. No. sanctions
will be imposed at this time.” Doc.
October 4, 2018, Defendants served a Notice of Videotaped
Deposition for Plaintiff. Doc. 27. Plaintiff
failed to appear at the scheduled deposition on October 19,
subsequently filed a Motion to Dismiss for Continued
Non-Participation of Plaintiff in Case Management and
Discovery, to Include Plaintiff's Failure to Appear for
his own Deposition, pursuant to Fed.R.Civ.P. 37(d) and 41(b),
filed on November 16, 2018 (Doc. 28).
According to Defendants, Plaintiff failed to seek any
discovery in support of his claims or to attend his own
deposition. Discovery is now closed. Doc.
14. Plaintiff failed to respond to the motion to
dismiss or respond to the Notice of Briefing Complete filed
by Defendants. Doc. 31.
November 29, 2018, Defendants filed a Motion for Summary
Judgement on the Basis of Qualified Immunity and Lack of
Evidence (Doc. 29). Plaintiff failed to
respond to the motion or respond to the Notice of Briefing
Complete filed by Defendants. Doc. 32.
appears that Plaintiff failed to send his portion of his
pretrial order to Defendants by January 14, 2019. Plaintiff
was directed to do so in the Court's scheduling order.
the Court issued the Order to Show Cause. Doc.
35. The Court directed Plaintiff to respond to the
Order to Show Cause and provide good cause why he should not
be sanctioned for failing to prosecute this case, respond to
Defendants' motions, or attend his deposition. The Court
also directed Plaintiff to respond to the two pending
dispositive motions. The Court warned Plaintiff that his
failure to comply with ...