United States District Court, D. New Mexico
ORDER DISMISSING PLAINTIFF'S COMPLAINT
MATTER is before the Court sua sponte, following
Plaintiff Larry Vigal's failure to appear at a March 13,
2019, telephonic status conference and his subsequent failure
to respond to the Court's Order to Show Cause. Doc. 28.
Based on Plaintiff's failure to prosecute and failure to
comply with the Court's orders, the Court hereby
DISMISSES Plaintiff's Complaint with prejudice.
commenced this suit on June 1, 2018, in the Fourth Judicial
District Court of New Mexico, asserting federal claims
arising from his incarceration. See generally Doc. 1-1.
Defendants removed the action to this Court on July 2, 2018.
Doc. 1. Plaintiff was released from the New Mexico Department
of Corrections in December 2018. Doc. 24 at 1.
February 13, 2019, Joseph Kennedy moved to withdraw as
counsel for Plaintiff. See id. He explained in his
motion that he had attempted to meet with Mr. Vigal numerous
times, without success, but was unable “to establish
and maintain regular contact with Plaintiff since his release
from prison and is therefore unable to zealously advocate for
Plaintiff.” Id. at 2. Mr. Kennedy described
how he had attempted to reach out to Mr. Vigal by contacting
his mother, but had obtained no independent contact
information for Plaintiff. Id. On February 15, 2019,
the Court issued an order granting Mr. Kennedy's Motion
to Withdraw. Doc. 25.
now proceeding pro se, failed to appear at the
telephonic status conference scheduled for March 13, 2019.
Docs. 26, 28. The Order Setting Telephonic Status Conference
(Doc. 26) was issued nearly a month prior and mailed to the
address of Plaintiff's mother. The Court issued an Order
to Show Cause on March 18, 2019, directing Plaintiff 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. 28. The
response deadline was April 10, 2019. That deadline has now
passed and, to date, Plaintiff 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, the
Court finds that this cause of action should be dismissed for
Plaintiff's failure to appear at the status conference
and his failure to comply with the Court's show cause
Actual Prejudice to Defendants
absence has already resulted in significant prejudice to
Defendants. Defendants in this case cannot move forward with
discovery in a timely manner and have been unable to so much
as depose Plaintiff. See Doc. 27. Due to the uncertainty and
delay associated with Plaintiff's failure to appear at
the conference, respond to discovery requests, or communicate
with counsel in any way, discovery deadlines in ...