United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
Fashing United States Magistrate Judge.
MATTER comes before the Court on the sua sponte
order to show cause issued on August 30, 2019, to pro se
plaintiff Andrew Nunez. Doc. 33. The August 30, 2019 order to
show caused issued is not the first order to show cause
issued by the Court. The Court issued an order to show cause
on June 5, 2019, for plaintiff’s failure to serve Gregg
Marcantel (Doc. 23), and another order to show cause on June
16, 2019, for plaintiff’s failure to serve defendants
Correctional Properties Trust, Raymond Smith, and Rose
Bobchack (Doc. 24). Plaintiff failed to perfect service on
these defendants or file a written response to the orders to
show cause in violation of those orders. The Court
subsequently dismissed Gregg Marcantel, Correctional
Properties Trust, Raymond Smith, and Rose Bobchack. Docs. 25,
Court set a telephonic Rule 16 initial scheduling conference
for August 30, 2019, at 2:00 p.m. Doc. 28. Mr. Nunez did not
appear for the conference in violation of that order. Mr.
Jahner, appearing on behalf of GEO Corrections and Detention,
LLC, the only remaining defendant, advised the Court that he
had been in contact with Mr. Nunez and had reminded him about
the telephonic conference. Doc. 30. Mr. Jahner further
advised that he had discussed the joint status report and
provisional discovery plan (“JSR”) with Mr. Nunez
in general terms, reminded him of his obligation to supply
his portions of the JSR, and provided Mr. Nunez with a Word
version of the JSR. Id. Mr. Nunez, however, did not
supply Mr. Jahner or the Court with his portions of the JSR,
and did not otherwise participate in the initial scheduling
conference. See Docs. 29, 30. Accordingly, the Court
issued a third order to show cause for Mr. Nunez’s
failure to attend the scheduling conference. Doc. 33.
order to show cause, the Court cautioned Mr. Nunez that his
“failure to comply with this order may result in a
recommendation to the District Judge to dismiss Mr.
Nunez’s complaint without further warning.” Doc.
33 at 2. Mr. Nunez had through September 13, 2019, to respond
to the order to show cause. Id. There is no
indication that Mr. Nunez did not receive the third order to
show cause. Nonetheless, Mr. Nunez failed to respond in
violation of that order. This is the fourth time Mr. Nunez
has failed to comply with an order of the Court. Further, Mr.
Nunez has not filed anything with the Court or participated
in the prosecution of his claims since February 8, 2019.
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. Nunez failed to obey several orders of the Court.
He failed to participate in the creation of the JSR, failed
attend the initial scheduling conference, and failed to
respond to three orders to show cause. Mr. Nunez’s
failure to participate has caused a high degree of prejudice
to defendant GEO. Defendant GEO has expended time and money
discussing the JSR with Mr. Nunez at the meet and confer,
preparing its portions of the JSR, and attending the
scheduling conference. Notably, defendant GEO submitted a
motion for judgment on the pleadings on September 5, 2019,
that Mr. Nunez has not responded to within the time
prescribed. See D.N.M.LR-Civ. 7.4(a) (“A
response must be served and filed within fourteen (14)
calendar days after service of the motion.”). Mr.
Nunez’s response was due on September 19, 2019, but
none was filed.
Mr. Nunez’s lack of participation interferes with the
judicial process. The case has been stymied by Mr.
Nunez’s refusal to respond or participate. The case
cannot move forward without his participation. Mr. Nunez is
culpable for violating the Court’s orders. There is no
indication that he did not receive the Court’s orders,
and no explanation why he has refused to abide by them.
Finally, Mr. Nunez was warned in the order to show cause that
sanctions-including dismissal-could be imposed. Doc. 33 at 2.
Despite this warning, and dismissal of his claims against
several defendants, Mr. Nunez has ignored the orders of this
Court, indicating that lesser sanctions would not be
the Ehrenhaus factors weigh in favor of dismissal, I
recommend that pro se plaintiff Andrew Nunez’s