Armbek v. City and County of Denver et al

Filing 103

ORDER. Ordered that the case is DISMISSED without prejudice pursuant to Rule 41(b) for plaintiff's failure to prosecute, by Judge R. Brooke Jackson on 8/27/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 09-cv-2406-RBJ-MJW
JOSHUA ARMBECK, on behalf of KENNETH ARMBECK, deceased,
Intervenor Plaintiff,
v.
CITY AND COUNTY OF DENVER, et al.,
Defendants.

ORDER

Plaintiff Kenneth Armbeck, proceeding pro se, filed this action on October 6, 2009. On
August 1, 2011 defendants filed a motion for summary judgment [#75] and Mr. Armbeck filed a
response [#80]. However, before the Court could rule on defendants’ motion, Kenneth Armbeck
passed away on or about November 29, 2011. See [#89]. Defendants made several efforts to
notify relatives of Kenneth Armbeck, and discern whether anyone sought to intervene in the case
on behalf of Mr. Armbeck. [##95-96]. On May 29, 2012 this Court issued an order to show
cause giving a representative of Kenneth Armbeck’s estate until August 1, 2012 to file a motion
for substitution [#97]. On July 24, 2012 Kenneth Armbeck’s son, Joshua Armbeck, filed a
Motion to Intervene [#99]. The Court granted Joshua Armbeck’s motion on July 30, 2012, and
gave Mr. Armbeck until August 20, 2012 to file a response to the defendant’s motion for
summary judgment [#102]. No response was filed. Aside from the motion to intervene Joshua
Armbeck has made no attempt to take any action in this case for almost a year since Kenneth
Armbeck’s death.

Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move to dismiss the action or any
claim against it.” Rule 41(b) “has long been interpreted to permit courts to dismiss actions sua
sponte for a plaintiff’s failure to prosecute….” Rogers v. Andrus Transp. Services, 502 F.3d
1147, 1151 (10th Cir. 2007) (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 (10th Cir.
2003)).
Prior to choosing dismissal as the appropriate sanction, the Court considers several
factors: (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 party was warned in
advance that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Joshua
Armbeck has not filed a response within the time limitations set by the Court, nor has he made
any attempt to prosecute the case.
Accordingly, it is ordered that the case is DISMISSED without prejudice pursuant to
Rule 41(b) for plaintiff’s failure to prosecute.
DATED this 27th day of August, 2012.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge