United States District Court, D. New Mexico
DAVID A. ANAYA, Plaintiff,
THE COUNTY OF SOCORRO and SHERIFF WILLIAM ARMIJO AND DEPUTY KYLE HALEY in their professional and individual capacities, Defendants.
PROPOSED FINDINGS AND RECOMMENDED
Fashing United States Magistrate Judge.
MATTER is before the Court on its second sua sponte
Order to Show Cause, filed April 24, 2019. Doc. 10. The
Court's order required plaintiff David A. Anaya to
“provide the Court with a written explanation showing
good cause why this case should not be dismissed pursuant to
Fed.R.Civ.P. 25 on or before May 6, 2019.” Id.
at 1-2. Plaintiff failed to provide the Court with a written
explanation showing good cause by May 6, 2019. Consequently,
I recommend that the Court dismiss this case in its entirety
Rule of Civil Procedure 25 provides for the substitution of a
party if a party dies and the claim is not extinguished.
Fed.R.Civ.P. 25(a)(1). “A motion for substitution may
be made by any party or by the decedent's successor or
representative. If the motion is not made within 90 days
after service of a statement noting the death, the act by or
against the decedent must be dismissed.” Id; see
also Grandbouche v. Lovell, 913 F.2d 835, 836 (10th Cir.
1990) (“Rule 25(a)(1) was amended to require a motion
for substitution to be filed within ninety days from the time
a suggestion of death is filed in the district court and
electronically filed their suggestion of death on January 23,
2019. Doc. 6. “Electronic filing constitutes service
for purposes of Fed.R.Civ.P. 5” except under
circumstances not applicable here. D.N.M.LR-Civ. 5.1(a).
Plaintiff had through April 23, 2019, to file a motion for
substitution. Plaintiff did not file a motion for
substitution by April 23, 2019. Accordingly, the Court issued
its second order to show cause for plaintiff's failure to
file a motion for substitution. Doc. 10. Plaintiff failed to
respond to the Court's order.
Court may issue any just orders, including sanctions
authorized by Rule 37(b)(2)(A) (ii)-(vii), if a party fails
to obey a court order. See Fed. R. Civ. P. 41(b).
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)).
“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 dismissal 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). Dismissal as a
sanction under Rule 16(f) should ordinarily be evaluated
under the same factors. See Id. “The factors
do not create a rigid test but are simply criteria for the
court to consider.” Id. (citing
Ehrenhaus, 965 F.2d at 921).
case, plaintiff failed to obey the Court's second order
to show cause. Plaintiff's failure to respond has not
caused a high degree of prejudice to defendants. The
defendants have not had to expend time and money on this case
beyond filing the suggestion of death. Plaintiff's
failure to file a motion for substitution and failure to
respond to the Court's order to show cause, however, does
interfere with the judicial process. The case has been
stymied by plaintiff's failure to participate in any way
in the prosecution of his claims. Defendants William Armijo
and Kyle Haley removed this action to this Court from the
Second Judicial District on October 9, 2018. Doc. 1.
Plaintiff has done nothing since then to move this case
forward. The case cannot progress without plaintiff's
participation. Plaintiff and his attorney are culpable for
violating the Court's orders. There is no indication that
plaintiff's counsel did not receive the Court's
second order to show cause, and counsel has failed to explain
why no motion for substitution was filed on plaintiff's
behalf. Further, plaintiff was instructed in the order to
show cause to explain why this case should not be dismissed,
and he was warned that failure to do so would result in a
recommendation to the district judge to dismiss his complaint
without further warning. Doc. 10 at 2. Plaintiff failed to
respond in any way, thereby failing to provide any reason why
the Court should not dismiss his complaint. Plaintiff's
counsel surely understands the importance of responding to an
order to show cause, and he has provided no explanation for
failing to do so, indicating that lesser sanctions would not
the Ehrenhaus factors weigh in favor of dismissal, I
conclude that dismissal alone would satisfy the interests of
justice. I therefore recommend that plaintiffs complaint
against the remaining defendants-Sheriff William Armijo and
Deputy Kyle Haley-be dismissed without prejudice.
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.
The Court issued its first order
to show cause on January 23, 2019, for plaintiffs failure to
serve the County of Socorro. Doc. 5. The County was
subsequently dismissed for plaintiffs ...