Dowling v. Mountain States Line Constructors Joint Apprenticeship and Training Committee

Filing 89

ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE APPROVING and ADOPTING 72 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. Plaintiff's objections contained in Part One of the Response to the Report and Recommendations of the Magistrate Judge With Exhibits [#82] filed July 10, 2012, are OVERRULED. Plaintiff's claims in this lawsuit are DISMISSED WITH PREJUDICE as a sanction for plaintiff's failure to prosecute and fail ure to comply with the duly issued orders of the court. Judgment SHALL ENTER on behalf of defendant Mountain States Line Constructors Joint Apprenticeship and Training Committee against plaintiff Theresa L. Dowling on all claims for relief and c auses of action; provided, that the judgment shall be with prejudice. Defendant is AWARDED its costs, to be taxed by the clerk of the court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1. By Judge Robert E. Blackburn on 8/14/12. (mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 11-cv-02697-REB-KMT
THERESA L. DOWLING,
Plaintiff,
v.
MOUNTAIN STATES LINE CONSTRUCTORS JOINT APPRENTICESHIP AND
TRAINING COMMITTEE,
Defendant.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#72]1 filed June 6, 2012; and (2) plaintiff’s corresponding objections
stated in Part One of the Response to the Report and Recommendations of the
Magistrate Judge With Exhibits [#82] filed July 10, 2012.2 I overrule the objections,
adopt the recommendation, and dismiss this lawsuit with prejudice as a sanction for
plaintiff’s failure to prosecute and failure to comply with the duly issued orders of the
court.

1

“[#72]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.
2

The docket reflects no Part Two of the response or other subsequent objection by plaintiff,
which response or objection would be untimely in any event.

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which cognizable objections have been filed. I have considered
carefully the recommendation, objections, and applicable caselaw.
The plaintiff is proceeding pro se. Thus, I have construed her pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,
520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
The recommendation is detailed and well-reasoned. The magistrate judge
laboriously detailed the plaintiff’s repeated failures to communicate with opposing
counsel, participate in the orderly development of the case, and timely respond to
orders duly issued by the court. She appropriately considered the relevant factors that
inform the decision whether to dismiss a case with prejudice as a sanction for such
habitual failures. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).
Given the history of this case, I concur with the magistrate that no sanction short of a
dismissal with prejudice will be efficacious to prevent further abuses in the future.
Plaintiff’s objections do not convince me otherwise. None of them are directly
responsive to the magistrate judge’s recommendation. Instead, plaintiff has merely
reiterated and expanded on the various explanations as to why she allegedly could not
prosecute this case. Nevertheless, as the magistrate judge recognized in her
recommendation, plaintiff’s various difficulties are largely of her own making and would

2

have been easily rectified had she made any effort to communicate with opposing
counsel and the court prior to entry of the show cause order.3 Indeed, plaintiff admits in
her objections that she does not want to have this case tried in federal court, but would
prefer to proceed in state court.
Therefore, I find and conclude that the arguments advanced, authorities cited,
and findings of fact, conclusions of law, and recommendation proposed by the
magistrate judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#72] filed
June 6, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That plaintiff’s objections contained in Part One of the Response to the
Report and Recommendations of the Magistrate Judge With Exhibits [#82] filed
July 10, 2012, are OVERRULED;
3. That plaintiff’s claims in this lawsuit are DISMISSED WITH PREJUDICE as a
sanction for plaintiff’s failure to prosecute and failure to comply with the duly issued
orders of the court;
4. That judgment SHALL ENTER on behalf of defendant Mountain States Line
Constructors Joint Apprenticeship and Training Committee against plaintiff Theresa L.
Dowling on all claims for relief and causes of action; provided, that the judgment shall
be with prejudice; and

3

Plaintiff also makes various unsubstantiated accusations about the veracity of opposing counsel
and the impartiality of the magistrate judge. I credit none of these assertions.

3

5. That defendant is AWARDED its costs, to be taxed by the clerk of the court
pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated August 14, 2012, at Denver, Colorado.
BY THE COURT:

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