Dingo, Inc. v. Who Ya Gonna Call Bark Busters Pty., Ltd.

Filing 41

ORDER. 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 7/30/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-02583-PAB-KMT
DINGO, INC., a Colorado corporation,
Plaintiff,
v.
WHO YA GONNA CALL BARK BUSTERS PTY., LTD., a New South Wales, Australia
corporation,
Defendant.

ORDER

On July 18, 2013, the Court issued an Order to Show Cause [Docket No. 40],
why this case should not be dismissed given that there were no remaining claims at
issue. Docket No. 40 at 1. Neither party responded to the Order to Show Cause by the
deadline of July 29, 2013.
Rule 41(b) of the Federal Rules of Civil Procedure 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 Local Rule 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.

D.C.COLO.LCivR 41.1. 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. See
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)).
Generally, courts consider 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).
In this case, dismissal will not prejudice defendant as it was a signatory to the
Joint Status Report [Docket No. 35], which indicated that there were no remaining
claims at issue. Hence, the first Ehrenhaus factor weighs in favor of dismissal.
Second, the parties’ failure to comply with the Court’s Order to Show Cause
demonstrates a lack of respect for the judicial process. In addition, the need to issue
additional Orders to Show Cause increases the workload of the Court and interferes
with the administration of justice. Thus, the second Ehrenhaus factor weighs in favor of
dismissal.
Because the parties are culpable for the delay in the prosecution of this case
since they did not respond to the Court’s Order, the third Ehrenhaus factor also weighs
in favor of dismissal. Similarly, the fourth Ehrenhaus factor weighs in favor of dismissal

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because the Court specifically warned the parties that failure to respond to the Court’s
Order would lead to dismissal. See Docket No. 40 at 1. Finally, the Court finds that,
although the parties’ conduct is condemnable, it is not sufficiently egregious to warrant
dismissal with prejudice. See Ehrenhaus, 965 F.2d at 920 (“Because dismissal with
prejudice defeats altogether a litigant’s right of access to the courts, it should be used
as a weapon of last, rather than first, resort”) (internal quotation marks omitted). Thus,
after considering the Ehrenhaus factors, the Court finds that dismissal without prejudice
is appropriate.
Accordingly, it is
ORDERED that this case is dismissed without prejudice pursuant to Federal
Rule of Civil Procedure 41(b) for plaintiff’s failure to prosecute and to obey orders of the
Court.

DATED July 30, 2013.
BY THE COURT:

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

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