Arakji v. Martinez et al

Filing 146

ORDER Dismissing Case WITH PREJUDICE for Failure to Prosecute. FURTHER ORDERED denying as moot 134 Motion to Dismiss, 142 Motion for Sanctions, and 144 Motion to Reset, by Judge Christine M. Arguello on 2/25/2016.(vbarn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 15-cv-00681-CMA-MJW
MAZEN ARAKJI,
Plaintiff,
v.
CLIFF HESS,
ANDREW MARTINEZ,
ROBERT BREWER,
CHRISTOPHER FAYLES,
TRACEY LEESE,
JASON LINGLE,
BRENDA SORRELES,
STEVE AUSTIN,
DANMCQUEEN,
ERIC FREDRICK,
NEIL MARTINEZ,
VINCENT LOPEZ,
DESHAWN ABRAM, John Doe 6 and John Doe 7,
HERMAN HEARD,
PAUL SEGURA,
KARL FORD,
SHAWN LAUGHLIN,
MARK THOMPSON,
ANDREW JOHNSON,
DWITAMA SUMARSAM,
SCOTT LAFLEUR,
HEIDI WALTS,
JASON HEBRARD,
STEVE FRANZ,
CHRIS KEARNS,
HEIDI SCOTT, and
BROOMFIELD CITY AND COUNTY
Defendants.
ORDER DISMISSING CASE WITH PREJUDICE FOR FAILURE TO PROSECUTE

This matter is before the Court sua sponte, in light of the February 16, 2016
Order to Show Cause (Doc. # 145.) For the following reasons, this Court dismisses this
case with prejudice for failure to prosecute.
I. BACKGROUND
On April 1, 2015, Plaintiff initiated this pro se civil rights suit pursuant to 42
U.S.C. § 1983. On November 20, 2015, this Court modified its scheduling order, setting
a January 30, 2016 deadline for discovery and a February 29, 2016 deadline for
dispositive motions. (Doc. # 139.) Pursuant to the modified scheduling order, counsel
for Defendants contacted Plaintiff via e-mail on December 2, 2015 regarding the need to
schedule Plaintiff’s deposition. (Doc. # 142 at 2.) Defendants’ counsel also provided a
Notice of Deposition, indicating a date, time, and place for the deposition, and asked
Plaintiff to indicate if there was any problem with the chosen date. (Id.) According to an
electronic service notification, the e-mail was successfully relayed to Plaintiff’s e-mail
account. (Id.) Plaintiff never responded. (Id. at 3.)
On or about December 10, 2015, counsel for Defendants sent a follow up e-mail
to a second address on file. (Id.) Electronic service notification confirmed that the email was delivered successfully. (Id.) On the same day, a copy of the Notice of
Deposition was sent via regular mail to Plaintiff’s PO Box, the only physical address for
Plaintiff on file with this Court. (Id.) Plaintiff did not respond to either communication.
On January 4, 2016, the day before the scheduled deposition, counsel for
Defendants sent a final e-mail reminder to Plaintiff. (Id.) Electronic service notification
confirmed that the e-mail was delivered successfully. (Id.) Again, Plaintiff did not
respond. (Id.)

On the appointed date, defense counsel and several of the individually named
Defendants appeared for Plaintiff’s deposition. (Id. at 3-4.) Plaintiff did not appear, and
sent no communications concerning his failure to appear. (Id. at 4.)
Defendants submit that they have received no communications from Plaintiff for
the “last few months.” (Id.) Plaintiff last communicated with this Court on September 3,
2015. (Doc. # 130.) On December 3, 2015, this Court offered to appoint pro bono
counsel pursuant to D.C.COLO.LAttyR 15, directing Plaintiff to file a motion for
appointment of counsel no later than December 10, 2015. (Doc. # 141.) Plaintiff failed
to make any such motion.
On February 16, 2016, this Court issued an order to show cause, directing
Plaintiff to show on or before February 23, 2016 “why this action and Complaint should
not be dismissed for failure to prosecute; failure to appear for his deposition on January
5, 2016; and failure to comply with Federal Rules of Civil Procedure.” (Doc. # 145.)
Plaintiff did not respond.
II. LEGAL STANDARD AND DISCUSSION
Pursuant to Federal Rule of Civil Procedure 41(b), a court can dismiss an action
sua sponte for failure to prosecute or to comply with the court’s orders. See Olsen v.
Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 630–31 (1962)). “A district court undoubtedly has discretion to sanction a
party for failing to prosecute or defend a case.” Reed v. Bennett, 312 F.3d 1190, 1195
(10th Cir. 2002). A court may dismiss a case for failure to prosecute after considering
the following criteria: “(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.” Ehrenhaus v. Reynolds,
965 F.2d 916, 921 (10th Cir. 1992). “These factors do not constitute a rigid test; rather,
they represent criteria for the district court to consider prior to imposing dismissal as a
sanction.” Id. “Dismissal 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) (citation
omitted).
In the instant case, all of the Ehrenhaus factors weigh strongly in favor of
dismissal. First, Plaintiff’s disappearance from this litigation has substantially prejudiced
the Defendants. Counsel spent time and incurred substantial costs to prepare for a
deposition that Plaintiff apparently ignored. (Doc. 142 at 5.) It would further waste
Defendants’ time and resources to require continued defense when it appears that
Plaintiff is either unwilling or unable to continue the case. See Williams v. Ocwen Loan
Servicing, LLC, No. 10-cv-01578-WJM-KLM, 2011 WL 1595991, at *2 (D. Colo. March
15, 2011) (holding that a plaintiff’s neglect of the case prejudiced defendants because
defendants expended time and resources to prepare motions and it would have further
wasted defendant’s time and resources to require it to continue to defend the action);
see also U.S. v. $72,100 in U.S. Currency, No. 08-4085, 2009 WL 247837, at *5 (10th
Cir. Feb. 3, 2009) (affirming the district court’s holding that an appellant’s failure to
comply with court ordered discovery wasted judicial resources and warranted
dismissal).

Second, Plaintiff’s failure to prosecute this case, and specifically his failure to
attend his deposition and respond to this Court’s order to show cause, necessarily
interfered with the effective administration of justice. A court has the authority to impose
the sanction of dismissal for failing to obey court orders. Gripe v. City of Enid, Okla.,
312 F.3d 1184, 1188 (10th Cir. 2002). Plaintiff’s failure to respond to the order to show
cause evidenced a lack of respect and increased the workload of this Court. See Lynn
v. Roberts, No. 01–cv–3422–MLB, 2006 WL 2850273, at *7 (D. Kan. Oct.4, 2006)
(plaintiff’s failure to follow procedural rules and court orders interfered with the judicial
process because it “required the court to expend extra time and resources to deal with
his repeated violations,” including the additional time and expense required to produce
the order of dismissal.)
Third, Plaintiff is solely responsible for what can only be described as
inexcusable delays in this case. Counsel for Defendants made repeated good-faith
attempts to contact Plaintiff, using multiple e-mail addresses and conventional mail.
While this Court recognizes that Plaintiff is proceeding pro se, a lack of legal training
neither explains nor justifies his nonresponsive and disrespectful behavior.
Fourth, this Court explicitly warned Plaintiff that dismissal with prejudice might
result from his failure to respond to the order to show cause. (Doc. # 145.) That this
Court warned Plaintiff of this outcome is beyond dispute.
Fifth, although 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, the Court believes that no
other sanction will be effective to deter Plaintiff’s pattern of impermissible conduct. See

Rizzuto v. WYSE Financial Serv., Inc., No. 12–cv–01203–CMA–KMT, 2013 WL
1461583, at *2 (March 18, 2013), aff’d 2013 WL 1461545 (D. Colo., Apr. 09, 2013)
(dismissing with prejudice for failure to prosecute where plaintiff failed to respond to an
order to show cause and failed to comply with court orders to file status reports); Ramon
v. City of Denver, No. 08–cv–00433–CMA–KMT, 2011 WL 222319, at *3 (Jan. 21,
2011) (plaintiff’s failure to provide disclosures and complete discovery pursuant to a
court order “should not be tolerated” and no other sanction short of dismissal with
prejudice was appropriate). See also 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2369, at 576–77n.1 (3d ed.2008); D.C.COLO.LCivR 41.1 (“If
good cause is not shown within the time set in the show cause order, a district judge or
magistrate judge exercising consent may enter an order of dismissal with or without
prejudice.”). It appears that Plaintiff is no longer capable of or interested in prosecuting
his case. See Garcia v. Graves, No. 12-cv-02718-WJM-KLM, 2013 WL 6670055, at *3
(D. Colo. Nov. 18, 2013). The deadline for discovery in this case has passed and the
deadline for dispositive motions is fast approaching. Even if this Court ordered lesser
sanctions and asked Defendants to reschedule Plaintiff’s deposition, there is no
evidence to suggest Plaintiff would attend or otherwise participate in this litigation.
Because the Ehrenhaus factors weigh strongly in favor of dismissal, dismissal
with prejudice is an appropriate sanction for Plaintiff’s failure to prosecute this suit.
III. CONCLUSION
Accordingly, it is hereby ORDERED that this case is DISMISSED WITH
PREJUDICE pursuant to Rule 41(b) for Plaintiff’s failure to prosecute. It is

FURTHER ORDERED that Defendant Karl Ford’s Motion to Dismiss (Doc. #
134), Defendants’ Joint Motion for Sanctions (Doc. # 142), and Defendants’ Second
Motion to Reset Scheduling Order (Doc. # 144) are DENIED AS MOOT.
DATED: February 25, 2016

BY THE COURT:

_____________________________
CHRISTINE M. ARGUELLO
United States District Judge