Rice, Jr v. Internal Revenue Service

Filing 10

ORDER. 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. By Judge Philip A. Brimmer on 8/26/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-01833-PAB
DAVID K. RICE, Jr.,
Plaintiff,
v.
INTERNAL REVENUE SERVICE,
Defendant.

ORDER

This matter is before the Court on the Order to Show Cause [Docket No. 5]. On
July 11, 2013, plaintiff filed a complaint [Docket No. 1] asserting two claims for relief
against defendant. Because the complaint contained plaintiff’s social security number,
the Court ordered plaintiff to notify the Court by Wednesday, July 24, 2013, whether he
waived the protections of Rule 5.2(a) of the Federal Rules of Civil Procedure and, if not,
to refile a redacted complaint that complies with Rule 5.2(a). Docket No. 3 at 1. Plaintiff
did not respond to the order by the deadline of July 24, 2013. In addition, on August 1,
2013, the Court’s mailing to plaintiff was returned as “undeliverable.” See Docket No. 4;
See D.C.COLO.LCivR 10.1M (noting that 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”).
On August 1, 2013, the Court ordered plaintiff to show cause no later than
August 20, 2013, why this case should not be dismissed for failure to respond to Court
orders. Docket No. 5. On August 12, 2013, plaintiff filed a notice of change of address.

Docket No. 7. However, plaintiff did not respond to the Court’s order to show cause. In
addition, despite plaintiff providing a new address, the Court’s mailing to plaintiff was
returned as “undeliverable.” Docket No. 9.
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).

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In this case, dismissal will not prejudice defendant because it has not been
served with process or entered an appearance. Thus, the first Ehrenhaus factor weighs
in favor of dismissal. Second, plaintiff’s failure to comply with the Court’s orders
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.
Third, because plaintiff is culpable for the delay in the prosecution of this case
since he did not respond to the Court’s orders, the third Ehrenhaus factor also weighs
in favor of dismissal. Similarly, the fourth Ehrenhaus factor weighs in favor of dismissal
because the Court specifically warned plaintiff that failure to respond would lead to
dismissal. See Docket No. 5. Finally, the Court finds that, although plaintiff’s conduct
cannot be excused, 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.

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DATED August 26, 2013.
BY THE COURT:

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

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