McNulty et al v. Decision One Mortgage Company, LLC et al

Filing 21

ORDER that this case is DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b) for Plaintiffs failure to prosecute. by Judge Christine M. Arguello on 5/24/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-00521-CMA-CBS
JOSEPH E. MCNULTY,
DAWN L. MCNULTY, and
ALL OTHERS SIMILARLY SITUATED,
Plaintiff,
v.
DECISION ONE MORTGAGE COMPANY, LLC;
DEUTSCHE BANK NATIONAL TRUST COMPANY, a/k/a DEUTSCHE BANK TRUST
COMPANY AMERICAS, as TRUSTEE FOR HIS ASSET SECURITIZATION
CORPORATION TRUST 2007-HE2, MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-HE2; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.;
JOHN OR JANE DOES 1-1000, Unknown Investor;
JOHN ROES 1-20, Undisclosed Mortgage Aggregators, Mortgage Originators, Loan
Sellers, Trustees of Pooled Assets, and/or Trustees for Holders of Certificates of
Collateralized Mortgage Obligations;
PUBLIC TRUSTEE of EL PASO COUNTY; and
all Unknown Persons Who Claim Any Interest in the Subject Matter of this Action,
Defendants.

ORDER DISMISSING CASE

Plaintiffs initiated this action in state court on January 27, 2011 by filing a pro se
complaint. (Doc. # 3.) Defendants subsequently removed this case to federal court.
The case was referred to Magistrate Judge Craig B. Shaffer on March 11, 2011.
Defendant Deutsche Bank filed a Motion to Dismiss on March 9, 2011 (Doc. # 5), and
Defendant Public Trustee of El Paso filed a Motion to Dismiss on April 20, 2011. (Doc.
# 16.) A responding party generally has twenty days after the filing date of a motion to

respond. D.C.COLO.LCivR 7.1. Plaintiffs have not responded to either Motion to
Dismiss. By Minute Order, Magistrate Judge Shaffer extended Plaintiffs’ deadline to
respond to May 16, 2011. (Doc. # 20.) That date has since passed and Plaintiffs have
still not filed any responses.
Federal Rule of Civil Procedure 41(b) provides in relevant part: “If the plaintiff
fails . . . to comply with [court] rules or a court order, a defendant may move to dismiss
the action or any claim against it.” A district court may dismiss a case sua sponte under
Rule 41(b). See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1161 (10th Cir.
2007) (dismissing sua sponte under Rule 41(b) for failure to prosecute).
Before choosing dismissal as an appropriate sanction, this Court considers
(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 of the action 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). Plaintiffs have repeatedly been directed to file responses to the
pending motions. It has been over two months since the first motion to dismiss was
filed and Plaintiffs have yet to respond. Plaintiffs have offered no explanation for the
lack of response. This Court will not tolerate abuse of its limited judicial resources by
litigants who initiate actions and then refuse to prosecute.

2

Accordingly, IT IS ORDERED that this case is DISMISSED WITHOUT
PREJUDICE pursuant to Rule 41(b) for Plaintiff’s failure to prosecute.
DATED: May

24

, 2011
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

3