United States District Court, D. New Mexico
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 claimant Vernon Gatlin.
Docs. 32, 34, and 37. The Court issued the first order to
show cause because Mr. Gatlin failed to attend a telephonic
status conference scheduled for March 5, 2019 at 2:30 p.m.
Doc. 32 (“first order”). Mr. Gatlin was required
to respond to the first order by March 19, 2019, but failed
to do so. Accordingly, the Court issued a second order to
show cause for Mr. Gatlin's failure to comply with the
Court's first order. Doc. 34 (“second
order”). Mr. Gatlin was required to respond to the
second order by April 1, 2019. Id. In response to
the second order to show cause, Mr. Gatlin filed a notice of
change of address which did not entirely satisfy the Court.
The Court, therefore, set a telephonic hearing on the order
to show cause which took place on May 6, 2019. Docs. 36, 38.
Mr. Gatlin failed to attend the telephonic hearing. Doc. 38.
The Court issued its third order to show cause for Mr.
Gatlin's failure to attend the scheduled hearing. Doc. 37
record indicates that all three of the Court's orders to
show cause were mailed to Mr. Gatlin at his address of
record. Mr. Gatlin changed his address of record on March 28,
2019. Doc. 35. However, in his notice of change of address,
he acknowledged receipt of the second order to show cause.
See Doc. 35, And both the order setting a hearing on
the second order (Doc. 36) and the third order itself (Doc.
37) were sent to his current address. This is the third time
Mr. Gatlin has failed to obey an order of the Court. Mr.
Gatlin has not filed anything with the Court or participated
in the prosecution of this case since filing his notice of
change of address on March 28, 2019. Doc. 35.
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), or 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, Mr. Gatlin failed to obey several orders of the Court.
He failed to attend a scheduled status conference, a
telephonic hearing, and failed to respond to two orders to
show cause. Mr. Gatlin's failure to participate has not
caused a high degree of prejudice to defendants. Although the
government has expended time and money for counsel to attend
the status conference and the telephonic hearing, the
government has not expended an inordinate amount of time
dealing with this case. Government counsel also indicated
that Mr. Gatlin has not responded to any discovery requests.
See Docs. 31, 38. Mr. Gatlin's lack of
participation, however, does interfere with the judicial
process. The case has been stymied by Mr. Gatlin's
refusal to respond or participate. The prosecution of Mr.
Gatlin's claim cannot move forward without his
participation. Mr. Gatlin is culpable for violating the
Court's orders. There is no indication that he did not
receive the Court's orders, and-with the exception of the
notice of change of address-no explanation why he has refused
to abide by them. Finally, Mr. Gatlin was warned in the
orders to show cause that sanctions-including dismissal-could
be imposed. Doc. 32 at 1, Doc. 34 at 2, Doc. 37 at 2. Despite
these warnings, Mr. Gatlin has ignored several orders of this
Court, indicating that lesser sanctions would not be
the Ehrenhaus factors weigh in favor of dismissal, I
recommend that pro se claimant Vernon Gatlin's claim be
dismissed with 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