Ricks v. Bank of America NA et al

Filing 19

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. ORDERED that the Order to Show Cause 18 is MADE ABSOLUTE. RECOMMENDED that Plaintiff's Complaint 1 be DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that Defendants' Motion to Dismiss 8 is DENIED AS MOOT, by Magistrate Judge Kristen L. Mix on 5/9/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00051-LTB-KLM
NAQUETTA O. RICKS,
Plaintiff,
v.
BANK OF AMERICA NA,
BAC HOME LOAN SERVICING, L.P.,
FEDERAL NATIONAL MORTGAGE ASSOCIATION, and
JOHN DOES 1 THROUGH 5,
Defendants.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Order to Show Cause [Docket No. 18; filed
April 24, 2012]. The Court ordered Plaintiff to show cause as to “why this matter should not
be dismissed due to her failure to prosecute.” [#18] at 2. Plaintiff’s deadline for compliance
with the Order to Show Cause was May 7, 2012. Id. To date, Plaintiff has neither filed a
response nor informally contacted the Court in any manner.
Although Plaintiff is proceeding in this lawsuit without an attorney, she bears the
responsibility of prosecuting her case with due diligence. The Court must liberally construe
pro se filings; however, pro se status does not excuse the obligation of any litigant to
comply with the same rules of procedure that govern other litigants. See Green v. Dorrell,
969 F.2d 915, 917 (10th Cir. 1992); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994).

1

As noted in the Order to Show Cause, Defendants filed their Motion to Dismiss
Plaintiff’s Complaint and Jury Demand Pursuant to Fed. R. Civ. P. 12(b)(6) on February 14,
2012 [#8]. Pursuant to D.C.COLO.LCivR 7.1C. and Fed. R. Civ. P. 6, Plaintiff’s Response
was due on or before March 12, 2012. Plaintiff filed a motion for an extension of time to
submit her response on March 8, 2012, which the Court granted on March 13, 2012,
resetting the response deadline to March 15, 2012 [#13]. Plaintiff did not file a response
by March 15, 2012. After that deadline, on March 30, 2012, Plaintiff filed a second motion
for extension of time, which the Court struck due to Plaintiff’s failure to comply with
D.C.COLO.LCivR 7.1A. [#17]. To date, Plaintiff has not responded to the Motion to
Dismiss, or to the Order to Show Cause. Plaintiff’s conduct indicates to the Court that she
no longer intends to prosecute this lawsuit.
The Court warned Plaintiff in the Order to Show Cause that her failure to timely
comply with the instruction to respond would result in a recommendation that this matter
be dismissed due to Plaintiff’s failure to prosecute. [#18] at 2. Given Plaintiff’s failure to
file a response to Defendants’ Motion to Dismiss or to the Order to Show Cause, the Court
considers whether Plaintiff’s case should be dismissed as a sanction pursuant to Fed. R.
Civ. P. 41(b). See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007)
(noting that Court has inherent authority to consider sua sponte whether a case should be
involuntarily dismissed due to Plaintiff’s failure to prosecute); 9 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2369, at 576-77 & n.1 (3d ed. 2008).
In Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), the Tenth Circuit
enumerated the factors to be considered when evaluating grounds for dismissal of an

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action.1 The factors are: “(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.” Id. at 921 (internal
quotations and citations omitted); see also Gates Rubber Co. v. Bando Chems. Indus., 167
F.R.D. 90, 101 (D. Colo. 1996). “[D]ismissal is warranted when ‘the aggravating factors
outweigh the judicial system’s strong predisposition to resolve cases on their merits.’”
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007)
(quoting Ehrenhaus, 965 F.2d at 921).
Here, it is clear that Plaintiff has no intention of seeking resolution of this matter on
the merits. Although service was effected on Defendants, who timely filed the Motion to
Dismiss, Plaintiff did not file a Response in opposition to the Motion. More importantly,
Plaintiff has disobeyed a direct order of the Court by failing to file a response to the Order
to Show Cause regarding her intent to prosecute this case. These facts demonstrate that
Plaintiff has abandoned her lawsuit, and the above-stated Ehrenhaus factors weigh in favor
of dismissal without prejudice.2 Accordingly,
IT IS HEREBY ORDERED that the Order to Show Cause [#18] is MADE
ABSOLUTE. Thus,

1

The Court notes that the standards for dismissal pursuant to Rule 37 and Rule 41(b) are
essentially the same. Mobley v. McCormick, 40 F.3d 337, 340-41 (10th Cir. 1994) (“[W]e see no
principled distinction between sanctions imposed for discovery violations and sanctions imposed
[pursuant to Rule 41(b), and] . . . involuntary dismissals should be determined by reference to the
Ehrenhaus criteria.”).
2

Dismissal with prejudice "represents an extreme sanction appropriate only in cases of
willful misconduct," and should be used "as a weapon of last, rather than first, resort." Ehrenhaus,
965 F.2d at 920; see Butler v. Butierres, 227 F. App'x 719, 720 (10th Cir. Feb. 2, 2007) (remanding
dismissal with prejudice for determination of willfulness).

3

IT IS HEREBY RECOMMENDED that Plaintiff’s Complaint [#1] be DISMISSED
WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(b) for Plaintiff’s failure to prosecute.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss [#8] is DENIED AS
MOOT.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: May 9, 2012

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