Bath v. Experian Information Solutions, Inc. et al

Filing 29

ORDER. The 27 Recommendation of United States Magistrate Judge is accepted in part and rejected in part to the extent indicated in the Order. This case is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) for plaintiff's failure to prosecute and obey orders of the Court. The 15 Motion of Defendant Regions Bank to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) is denied as moot. By Judge Philip A. Brimmer on 4/20/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00151-PAB-MEH
BRIAN EDMOND BATH,
Plaintiff,
v.
EXPERIAN INFORMATION SOLUTIONS, INC., and
REGIONS BANK,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge Michael E. Hegarty [Docket No. 27] to dismiss this action without
prejudice for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure. On April 16, 2012, defendant Experian Information Solutions, Inc. filed
timely objections to the Recommendation [Docket No. 28]. Therefore, the Court will
“determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3).1
The Recommendation determined that plaintiff Brian Edmond Bath failed to
prosecute this case with due diligence because he failed to appear at the Scheduling
Conference, failed to comply with the Court’s February 14, 2012 Order instructing him
to submit a response, and failed to respond to two Orders to Show Cause. Docket No.

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The Recommendation contains a detailed statement of the case with which no
party has taken issue.

27 at 5. In light of plaintiff’s conduct, the magistrate judge considered the factors from
Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), and recommended dismissal of
plaintiff’s case without prejudice. Id.
Defendant does not object to the Recommendation’s findings, but instead
requests that the Court dismiss the case with prejudice. Docket No. 28 at 5. Defendant
argues that plaintiff has filed three similar cases in this District, two of which were
dismissed with prejudice because of plaintiff’s failure to prosecute. See Bath v. EMC
Mortgage Corp., No. 11-cv-01089-REB-MJW; see also Bath v. Dyck O’Neal, No.
11-cv-03117-PAB-MJW. Defendant claims that, in both of these cases, plaintiff failed
to offer evidence to support his allegations, failed to comply with court orders, and
stopped prosecuting his cases. Docket No. 28 at 4. Defendant submits that, because
of plaintiff’s previous failure to prosecute cases, the Court should dismiss this case with
prejudice to thwart plaintiff’s ability to refile the same claims in state court. Id.
Defendants did not bring these cases to the attention of Magistrate Judge Hegarty and
the Recommendation does not reference them.
In Ehrenhaus, the Tenth Circuit noted that dismissal with prejudice usually
“represents an extreme sanction appropriate only in cases of willful misconduct,” and
should be used as “‘a weapon of last, rather than first, resort,’” particularly in pro se
cases. 965 F.2d at 920 (citation omitted). The Tenth Circuit also stated that in “many
cases, a lesser sanction will deter the errant party from further misconduct.” Id. Here,
however, plaintiff has exhibited a pattern of behavior which shows a penchant for
ignoring court orders. Additionally, plaintiff’s unresponsiveness is consistent with his

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actions in other cases filed in this District. See Bath v. EMC Mortgage Corp., No.
11-cv-01089-REB-MJW [Docket No. 113] (dismissed for failure to appear for the
Scheduling Conference, Show Cause hearing, and failure to comply with court orders);
see also Bath v. Dyck O’Neal, No. 11-cv-03117-PAB-MJW [Docket No. 37] (dismissed
for plaintiff’s repeated failure to appear and failure to comply with court orders).
Moreover, at all relevant times, plaintiff was given advance notice of the potential
consequences of his actions. Thus, although plaintiff is proceeding pro se, his failure to
alter his behavior despite receiving a multitude of chances proves that this is not a case
wherein a lesser sanction could deter plaintiff. Accordingly, the Court finds that
plaintiff’s willful misconduct warrants dismissal with prejudice.
Therefore, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 27] is ACCEPTED in part and REJECTED in part to the extent indicated in this
Order. It is further
ORDERED that this case is dismissed with prejudice pursuant to Federal Rule of
Civil Procedure 41(b) for plaintiff’s failure to prosecute and obey orders of the Court. It
is further
ORDERED that the Motion of Defendant Regions Bank to Dismiss Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No. 15] is DENIED as moot.

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DATED April 20, 2012.
BY THE COURT:

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

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