Williams et al v. Mortgage Electronic Registration System, Inc. et al

Filing 32

ORDER Denying as moot 19 defendants Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and Supporting Memorandum Brief. It is further ORDERED that this case is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b) for plaintiffs failure to prosecute and to obey orders of the Court by Judge Philip A. Brimmer on 10/17/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-01059-PAB-KLM
LINDA S. WILLIAMS and
THOMAS K. WILLIAMS,
Plaintiffs,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEM, INC., as nominee for
Fieldstone Mortgage Company,
U.S. BANK NATIONAL ASSOCIATION, as Trustee for Sasco 2006-BC3, and
AMERICA’S SERVICING COMPANY,
Defendants.

ORDER OF DISMISSAL

On August 10, 2011, the Court issued an Order to Show Cause [Docket No. 25]
why this case should not be dismissed for failure to prosecute pursuant to Federal Rule
of Civil Procedure 41(b). On August 16, 2011, plaintiff Thomas K. Williams filed
Plaintiffs’ Response to Court’s Order of August 12, 2011 [Docket No. 31]. Because Mr.
Williams filed the response pro se, the Court will construe his pleading liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
I. BACKGROUND
Plaintiffs filed this case on March 17, 2011 in the District Court of Weld County,
Colorado [Docket No. 2]. In the complaint, plaintiffs asserted several claims for
damages and injunctive relief based on a home mortgage loan. Docket No. 2 at 3-6.

On April 21, 2011, defendants removed the case to this Court [Docket No. 1]. After
receiving an extension of time to respond to the complaint, defendants filed a motion to
dismiss pursuant to Fed. R. Civ. P. 12 [Docket No. 19] on May 20, 2011. On that same
day, plaintiffs stipulated to the dismissal of an identical matter pending before the Court,
see Williams v. Mortgage Electronic Registration System, Inc., 11-cv-01075-PAB-KLM,
stating that they intended to pursue this case exclusively.
On July 11, 2011, after the twenty-one day period in D.C.COLO.LCivR 7.1C
expired without plaintiffs having responded to the motion to dismiss, the Court issued
an Order to Show Cause [Docket No. 23] why the case should not be dismissed for
failure to prosecute pursuant to Fed. R. Civ. P. 41(b). Plaintiffs failed to respond by the
deadline of July 22, 2011. After the issuance of the July 11, 2011 Order to Show
Cause, the Court learned that counsel for plaintiffs was disbarred by the Colorado
Supreme Court on July 8, 2011. Thereafter, on August 10, 2011, the Court issued a
second Order to Show Cause [Docket No. 25] why plaintiffs’ counsel had failed to
withdraw from representation of plaintiffs and why plaintiffs’ case should not be
dismissed for failure to prosecute. Plaintiffs were ordered to respond on or before
August 22, 2011.
On August 15, 2011, the Court’s mailings to plaintiffs were returned as
“undeliverable.” See Docket Nos. 29, 30. Pursuant to D.C.COLO.LCivR 10.1M, a party
shall file notice of a new address “[w]ithin five days after any change of address . . . of
any attorney or pro se party.” Nevertheless, on August 16, 2011, Linda S. Williams and
Thomas K. Williams filed pro se “Plaintiffs [sic] Response to Court’s Order of August 12
[sic], 2011” [Docket No. 31]. The response was signed by Mr. Williams only. Given that
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Mr. Williams has no authority to represent his wife, the Court will consider this response
that of Mr. Williams. Mr. Williams asserts that:
1.

“Plaintiffs filed this case in Weld County District Court in the State
of Colorado. Defendants removed the case to Federal Court.
Plaintiffs’ counsel in State Court, Robert T. McAllister, never
entered an appearance in this federal case nor agreed to represent
Plaintiff in the U.S. District Court.”

2.

“Plaintiffs have not failed to prosecute this case in any manner.
The Defendants have sought and received two continuances to file
an answer and attend a scheduling conference.”

3.

“Plaintiffs were advised of the scheduling conference and planned
to attend and participate in the scheduling conference on August
31, 2011.”

Docket No. 31 at 1.
II. ANALYSIS
Fed. R. Civ. P. 41(b) allows the Court to dismiss a party’s claims for failure to
prosecute. See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir.
2007). This rule is complemented by D.C.COLO.LCivR 41.1, which states: “A judicial
officer may issue an order to show cause why a case should not be dismissed for lack
of prosecution or for failure to comply with these rules, the Federal Rules of Civil
Procedure, or any court order. If good cause is not shown within the time set in the
show cause order, a district judge or a magistrate judge exercising consent jurisdiction
may enter an order of dismissal with or without prejudice.” The Tenth Circuit interprets
Fed. R. Civ. P. 41(b) as impliedly bestowing the district court with the authority directly
conferred by Local Rule 41.1. Yates v. Arkin, 242 F. App’x 478, 482 (10th Cir. 2007)
(citing Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).

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The Court considers the following criteria in determining whether a dismissal with
prejudice pursuant to Rule 41(b) is warranted: “(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 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.” See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal
quotations and citations omitted).
A. Prejudice to Defendant
Before Mr. Williams’ response on August 16, 2011, plaintiffs did not file anything
in this case since its removal from state court on April 21, 2011. Moreover, plaintiffs
failed to respond to defendants’ motion to dismiss. As a result, defendants were forced
to file two motions to vacate and reschedule the scheduling conferences set in this case
[Docket Nos. 20, 24]. Plaintiffs’ failure to respond to defendants’ motion to dismiss has
interfered with defendants’ attempt to resolve this action on the merits. As a result, the
Court finds that this prejudice to defendants is a factor that weighs in favor of dismissal
with prejudice.
B. Interference with the Judicial Process
As noted above, plaintiffs failed to respond to the July 11, 2011 Order to Show
Cause and failed to provide the Court with an updated address. Plaintiffs’ failure to
comply with the Court’s July 11, 2011 Order to Show Cause and the Local Rules
demonstrates a lack of respect for the judicial process. Moreover, plaintiffs’ lack of
response to this Court’s orders has interfered with the judicial process in that the Court

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has been unable to conduct a Scheduling/Planning conference in this case. See
Docket No. 28. Additionally, the necessity of issuing multiple Orders to Show Cause
increases the workload of the Court and interferes with the administration of justice.
Accordingly, this factor weighs in favor of dismissal with prejudice.
C. Culpability of Plaintiffs
Mr. Williams asserts that “Plaintiffs have not failed to prosecute this case in any
manner.” Docket No. 31 at 1. Although Mr. Williams’ response demonstrates a
misunderstanding of the Federal Rules of Civil Procedure, especially in regard to the
effect of a motion to dismiss upon a defendant’s obligation to answer a complaint, pro
se status does not excuse plaintiffs’ obligation to comply with the same rules of
procedure that govern other litigants. See Green v. Dorrell, 969 F.2d 915, 917 (10th
Cir. 1992). Moreover, the July 11, 2011 Order to Show Cause did not require an
understanding of procedural rules. Instead, it set a deadline of July 22, 2011 for
plaintiffs to respond or face dismissal of their case. Yet plaintiffs failed to respond in
any fashion. The August 10, 2011 Order to Show Cause reiterated this directive.
Plaintiffs, however, have not provided any explanation for their failure to respond to
defendants’ motion to dismiss.
Mr. Williams alleges that “Defendants have sought and received two
continuances.” Docket No. 31 at 1. However, a motion asserting defenses under Rule
12(b) must be filed before an answer is filed. Fed. R. Civ. P. 12(b). Thus, defendants
were not required to file an answer until the Court resolved the motion to dismiss. See
Fed. R. Civ. P. 12(a)(4).

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Finally, responding to that portion of the Order to Show Cause directed at
plaintiffs’ counsel, plaintiffs allege that Mr. McAllister was never their attorney on this
matter because he did not enter an appearance. See Docket No. 31. Although Mr.
McAllister did not file a pleading on behalf of plaintiffs, he acted on behalf of plaintiffs
after this case was removed. In their unopposed motion for an extension of time,
defendants indicate that they called Mr. McAllister and conferred with him in compliance
with Local Rule 7.1A about whether plaintiffs were opposed to the extension. Docket
No. 15 at 1. Moreover, in subsequent filings, defendants mention that they have
“conferred with counsel for plaintiffs.” See Docket Nos. 20, 24. Since no other attorney
has entered an appearance in this case, the Court assumes that defendants conferred
with Mr. McAllister. Given Mr. McAllister’s disbarment, one might expect plaintiffs to
claim some disruption or impairment of their ability to respond to defendants’ motion to
dismiss or to Orders to Show Cause. Plaintiffs neither claim any such impairment nor
acknowledge that Mr. McAllister represented them. The problem with this position is
that plaintiffs are left with no excuse for their failure to respond to defendants’ motion to
dismiss or to the July 11, 2011 Order to Show Cause. Thus, this factor favors dismissal
of the case with prejudice.
D. Advance Notice of Sanction of Dismissal
The July 11, 2011 Order to Show Cause contains the following language:
“plaintiffs shall show cause why this case should not be dismissed for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41(b).” The August 10, 2011
Order to Show Cause reiterates the need for plaintiffs to provide reasons for their failure
to prosecute. Mr. Williams does not claim that he did not receive these orders in a
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timely fashion. The Court finds that plaintiffs were given advance notice of the possible
dismissal of this case if they failed to show cause. Thus, this factor also favors
dismissal with prejudice.
E. Efficacy of Lesser Sanction
The Court concludes that no sanction less than dismissal would be effective.
Plaintiffs have failed to prosecute this case with due diligence by their failure to respond
to defendants’ motion to dismiss, by their failure to comply with the July 11, 2011 Order
to Show Cause, and by their failure to advise the Court of a change of address.
However, given that plaintiffs are pro se, the Court must consider whether “some
sanction other than dismissal [with prejudice is appropriate], so that the party does not
unknowingly lose its right of access to the courts.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (quoting Ehrenhaus, 965 F.2d at 920
n.3). Because plaintiffs’ attorney was disbarred soon after the case was removed and
because plaintiffs appear to have some misunderstanding regarding the Federal Rules
of Civil Procedure, the Court believes that dismissal of this action without prejudice is
warranted. See Ehrenhaus, 965 F.2d at 920 n.3 (“Particularly in cases in which a party
appears pro se, the court should carefully assess whether it might appropriately impose
some sanction other than dismissal [with prejudice], so that the party does not
unknowingly lose its right of access to the courts because of a technical violation.”);
Meade v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988) (“[b]ecause dismissal with
prejudice ‘defeats altogether a litigant’s right to access to the courts,’ it should be used
as ‘a weapon of last, rather than first, resort.’”) (citations omitted).

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III. CONCLUSION
Accordingly, it is
ORDERED that defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(6) and Supporting Memorandum Brief [Docket No. 19] is DENIED as moot. It is
further
ORDERED that this case is dismissed without prejudice pursuant to Federal
Rule of Civil Procedure 41(b) for plaintiffs’ failure to prosecute and to obey orders of the
Court.

DATED October 17, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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