United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court sua sponte, following
Plaintiff Rawhi Farah's failure to appear at a March 6,
2019 telephonic status conference (doc. 30) and his
subsequent failure to respond to the Court's Order to
Show Cause (doc. 31). Based on Plaintiff's
failure to prosecute and failure to comply with the
Court's orders, I RECOMMEND that the Court DISMISS
Plaintiff Farah from this action.
Farah and Chavez commenced this suit on July 29, 2017 in the
Thirteenth Judicial District Court of New Mexico, asserting
both state and federal claims arising from their
incarceration. See generally doc. 1-1. Both
Plaintiff Farah and Plaintiff Chavez remained incarcerated at
the time of filing. Id. at 2. Defendant Corizon
removed the action to this Court on February 27, 2018.
February 6, 2019, Alvin Garcia, who was then representing
both plaintiffs, moved to withdraw as counsel for Mr. Farah.
Doc. 26. He explained in his motion that he had
attempted to reach Mr. Farah numerous times without success.
Mr. Farah's current address was unknown, but Mr.
Farah's brother informed Mr. Garcia that he had left the
country and was likely in Israel or Palestine. Id.
at 1. Mr. Farah's brother had no information about when
or if Mr. Farah might return to the United States.
Id. On February 11, 2019, the Court issued an order
granting Mr. Garcia's Motion to Withdraw. Doc. 27.
Farah, now proceeding pro se, failed to appear at
the telephonic status conference scheduled for March 6, 2019.
Doc. 30. The Order Setting Telephonic Status
Conference (doc. 28) was issued nearly a month prior
and mailed to Plaintiff Farah's last known address in
Tennessee. During the status conference, Mr. Garcia informed
the Court that he had not succeeded in contacting Mr. Farah
and that a package sent to Mr. Farah's last known address
had been returned. Doc. 30 at 1-2. Mr. Garcia
confirmed that he had spoken with Mr. Farah's brother,
but that Mr. Farah's brother was not in contact with Mr.
Farah. Counsel for all parties agreed that Mr. Farah's
discovery responses were long overdue. Id. at 2.
Court issued an Order to Show Cause on March 8, 2019,
directing Plaintiff Farah to show cause why the Court should
not assess sanctions against him, including dismissal of his
claims, for his failure to appear at the telephonic status
conference. Doc. 31. Moreover, Plaintiff Farah was
advised that a “[f]ailure to file a response in writing
shall constitute an independent basis for dismissal.”
Id. at 2. The response deadline was April 6, 2019.
That deadline has now passed and, to date, Plaintiff Farah
has not responded.
may dismiss an action if “the plaintiff fails to
prosecute or to comply with these rules or a court
order.” Fed.R.Civ.P. 41(b). Such a dismissal generally
“operates as an adjudication on the merits.”
Id. The case may be dismissed upon motion of the
defendant, or by the court sua sponte.
“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 the court's orders.”
Olsen v. Maples, 333 F.3d 1199, 1204 n.3 (10th Cir.
2003) (citing Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962)). The Federal Rules also specifically state
that a court may issue sanctions for failure to appear
“at a scheduling or other pretrial conference.”
Tenth Circuit has identified five factors for district courts
to consider in determining whether to issue a dismissal
sanction. Lee v. Max Int'l, LLC, 638 F.3d 1318,
1323 (10th Cir. 2011) (citing Ehrenhaus v. Reynolds,
965 F.2d 916, 921 (10th Cir. 1992)). These factors are as
(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
Ehrenhaus, 965 F.2d at 921 (internal quotations and
citations omitted). These factors “do not constitute a
rigid test.” Ehrenhaus, 965 F.2d at 921.
Rather, they are factors that a district court “may
wish to consider” in deciding whether to dismiss an
action. Lee, 638 F.3d at 1323. See also
Archibeque v. Atchison, T & S.F. Ry., 70 F.3d 1172,
1174-75 (10th Cir.1995) (upholding dismissal despite the fact
that the district court did not evaluate all five
Ehrenhaus factors). District courts enjoy
“very broad discretion” in their use of
sanctions. Lee, 638 F.3d at 1320 (internal quotation
and citation omitted).
the case in light of the Ehrenhaus factors, I find
that Plaintiff Farah should be dismissed from the action for
his failure to appear at the status conference and his