Davis v. McDonald
Filing
114
ORDER Dismissing Case with Prejudice for Failure to Prosecute. Plaintiff's Complaint 1 is dismissed with prejudice. Finding as moot 95 Defendant's Motion for Summary Judgment. Finding as moot 105 Defendant's Motion to Vacate th e Final Pretrial Conference and Deadline for Submitting a Proposed Final Pretrial Order. Finding as moot 109 Plaintiffs Motion to Expand Time to Respond to Defendant's Motion to Vacate the Final Pretrial Conference, Request for Leave to Seek S ubstitute Counsel, and Request for Status Conference. Finding as moot 111 Plaintiff's Motion to Modify Scheduling Order and for an Extension of Time to Respond to Defendant's Motion for Summary Judgment. Entered by Judge William J. Martinez on 4/15/2019. (afran)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 15-cv-1521-WJM-KMT
CELINA R. DAVIS, Substituted for
DUANE S. DAVIS, Deceased,
Plaintiff,
v.
HON. ROBERT WILKIE of DOD, SECRETARY OF THE DEPARTMENT OF
VETERANS AFFAIRS, in his Official Capacity.1
Defendant.
ORDER DISMISSING CASE WITH PREJUDICE FOR FAILURE TO PROSECUTE
This matter comes before the Court sua sponte regarding Plaintiff Celina R.
Davis’s failure to prosecute and comply with Court Orders.
On July 16, 2015, Duane S. Davis (“Mr. Davis”) brought claims against the
Honorable Robert Wilkie, Secretary of the Department of Veterans Affairs, in his official
capacity (“Defendant”), alleging (1) disability discrimination under the Rehabilitation Act
of 1973 (“Rehabilitation Act”; 29 U.S.C. §§ 791 et seq.), (2) retaliation for exercising his
rights under both the Rehabilitation Act and T itle VII of the Civil Rights Act of 1964
(“Title VII”; 42 U.S.C. §§ 2000e et seq.), and (3) “hostile work environment/constructive
discharge.” (ECF No. 1.)
1
The parties’ pleadings identify “Robert A. McDonald” as the Secretary of the
Department of Veterans Affairs. While Mr. McDonald held that position when this lawsuit was
filed in 2015, he has since been succeeded by five different Secretaries. Thus, the Court has
updated the caption of this Order to reflect the current Secretary of the Department of Veterans
Affairs, the Honorable Robert Wilkie, as the correct Defendant.
During the pendency of this lawsuit, however, Mr. Davis passed away. (ECF No.
77.) As a result, Mr. Davis’s interests in this litigation transferred to his wife, Celina R.
Davis (“Plaintiff”), and the Court subsequently granted her motion to be substituted as
the real party in interest and plaintiff in this action. (ECF Nos. 78 & 79.)
For the reasons set forth below, the Court dismisses this case with prejudice.
I. PROCEDURAL HISTORY
A.
Background
Mr. Davis began working at the Denver Regional Office of the Department of
Veterans Affairs (“the VA”) in 1988 and continued to work there until he was allegedly
forced to retire in 2011. (ECF No. 1 at 2, 11, ¶¶ 6–7, 85.) During his employment at
the VA, he was diagnosed with a bad back, hypertension, and swelling of hands, feet
and legs due to congestive heart failure. (Id. at 3, ¶¶ 10–12.) Mr. Davis filed this action
against Defendant on July 16, 2015. (ECF No. 1.) Mr. Davis and Plaintiff have been
represented by John W. Davis (“John Davis” or “Plaintiff’s counsel”), who is Mr. Davis’s
older brother, throughout this lawsuit. John Davis is based in Washington, D.C.
In the Complaint, filed on July 16, 2015, Plaintiff brings three causes of action
against Defendant. First, Plaintiff alleges that Defendant “failed and refused to grant a
reasonable accommodation of [Mr. Davis’s] medical conditions” in violation of his rights
under the Rehabilitation Act. (Id. at 12, ¶ 89.) Second, Plaintiff claims that Mr. Davis
was retaliated against for engaging in the VA Equal Employment Opportunity Complaint
Process—a protected activity under Title VII and the Rehabilitation Act. (Id. at 12,
¶¶ 91–93.) Finally, Plaintiff alleges that Defendant, “in perpetuating the acts and
2
practices described herein, purposefully made [Mr. Davis’s] work environment so
hostile, and made his working conditions so intolerable that [Mr. Davis] was forced to
resign in order to preserve his physical and mental health.” (Id. at 13, ¶ 95.)
B.
Initial Scheduling Conference
After two resettings (ECF Nos. 8 & 10), the initial Scheduling Conference was
set for December 30, 2015 (ECF No. 12). On December 15, however, the parties filed
a joint motion to have the Scheduling Conference moved to a later date. (ECF No. 14.)
In the joint motion, the parties explained that the “reason for this request is the need for
Plaintiff’s counsel to address a serious health matter that prevents him from preparing
for and participating in the Scheduling Conference on [December 30, 2015].” (Id. at 1.)
The parties also noted that due to attorney John Davis’s health problems, they had “not
been able to conduct the conference required under Fed. R. Civ. P. 26(f) or to complete
the preparation of the proposed Scheduling Order, which must be filed by December
23, 2015.” (Id.)
On December 16, 2015, the joint motion was granted (ECF No. 16) by United
States Magistrate Judge Kathleen M. Tafoya, and the Scheduling Conference was
reset for January 20, 2016 (ECF No. 17). The Scheduling Conference was held on that
date (ECF No. 23), and the Magistrate Judge issued a Scheduling Order (ECF No. 24).
Among other things, the Scheduling Order set an expert witness disclosure deadline of
May 16, 2016; a rebuttal expert disclosure deadline of June 16, 2016; a discovery
cut-off of August 31, 2016; a dispositive motions deadline of October 3, 2016; and a
final pretrial conference on December 13, 2016. (Id. at 8–10.)
3
C.
First Set of Discovery Requests
On January 19, 2016, Defendant served Mr. Davis with his first set of discovery
requests (“First Set”), which included three requests for production of documents
(“RFPs”) and four interrogatories. (ECF No. 32 at 2.) 2 Pursuant to Rules 33(b)(2) and
6(d) (in the versions in effect at that time), Mr. Davis’s responses to these discovery
requests were due on or before February 22, 2016. After not receiving any responses
from Mr. Davis on that date, Defendant’s counsel reached out to John Davis on
February 24. (Id.) During their conversation, John Davis “indicated that [Mr. Davis]
would respond to the First [Set of Discovery] Requests by Wednesday, March 9, 2016.”
(Id.)
On March 10, 2016, however, John Davis informed Defendant that he needed
until March 16 to provide Mr. Davis’s responses to Defendant’s First Set of discovery
requests. (Id.) On April 7, Defendant once again reached out to John Davis to inquire
about when Mr. Davis would respond to the First Set of discovery requests. (Id. at
2–3.) In their conversation, John Davis “indicated that he had been in poor health and
promised to provide responses by April 18, 2016.” (Id. at 3.) John Davis, however,
failed to provide the responses by that day. (Id.)
On April 26, 2016, the parties filed a Joint Motion for Status Conference,
advising the Court that “Plaintiff’s counsel has been in ill health and has been unable, to
2
Mr. Davis did not object to the procedural history set forth in Defendant’s first Motion to
Compel Discovery (i.e., ECF No. 32), but instead conceded that the “procedural history recited
by Defendant in its motion is essentially correct.” (ECF No. 35 at 1.) Therefore, for the
purposes of this Order, the Court will take the procedural history contained in the motion as
true.
4
date, to participate in discovery.” (ECF No. 26 at 2, ¶ 5.) The parties further informed
the Court that John Davis had recently been “advised by his physician to refrain from
the practice of law for a minimum of 90 days.” (Id.) The parties also noted that
Defendant had “concerns about potential prejudice resulting from further delays” since
“[a]t least one VA witness ha[d] retired,” another had “accepted a job with another
federal agency,” and other witnesses had “moved to new VA positions in other states.”
(Id. at 2, ¶ 7.) The parties noted that “[t]hese changes demonstrate that it will be
increasingly difficult for the [Defendant] to ensure the availability of critical witnesses as
time passes.” (Id.)
On April 28, 2016, the Magistrate Judge granted the motion in part, and, rather
than setting a status conference or a granting a stay, extended the deadlines set forth
in the original Scheduling Order by 120 days. (ECF No. 28.) Specifically, the
Magistrate Judge extended the expert witness disclosure deadline to September 13,
2016; the rebuttal expert disclosure deadline to October 14, 2016; the discov ery cut-off
to December 29, 2016; the dispositive motions deadline to January 31, 2017; and the
final pretrial conference to April 12, 2017. (Id.)
The same day as the Magistrate Judge’s order, Defendant “once more contacted
Plaintiff’s counsel, noting that notwithstanding the extension, [Mr. Davis’s discovery]
responses were still overdue.” (ECF No. 32 at 3.) John Davis, however, “did not
respond or otherwise provide documents until approximately two months later,” when
he furnished a response to one of the three RFPs in the First Set. (Id.) Over the next
few months, Defendant made several unsuccessful attempts to confer with John Davis
5
about when he would respond to the outstanding discovery requests. (Id.) Finally, on
September 9, 2016, John Davis “indicated that he would provide complete responses to
the First [Set of Discovery] Requests no later than September 16, 2016.” (Id.) John
Davis, however, did not provide the responses by that day. (Id.)
On September 12, 2016, Defendant filed an Unopposed Motion to Amend the
Scheduling Order. (ECF No. 29.) In the motion, Defendant sought an extension of the
case deadlines since Defendant had “only recently received copies of some of
[Mr. Davis’s] medical records that were requested in January 2016” (apparently in
reference to the one RFP John Davis had provided to Defendant), and still had “not
received responses to other discovery requests propounded in January 2016.” (Id. at 2,
¶ 8.) Defendant’s counsel also notified the Court that she had “repeatedly contacted
Plaintiff’s counsel in February, March, and April of 2016 to inquire about the status of
[Mr. Davis’s] response to Defendant’s January discovery requests. Plaintiff’s counsel
explained that ill health prevented him from responding to Defendant’s discovery
requests.” (Id. at 2, ¶ 11.)
On September 13, 2016, the Magistrate Judge granted Defendant’s motion and
continued all of the case deadlines for approximately one to two additional months.
(ECF No. 31.) In particular, the Magistrate Judge extended the expert witness
disclosure deadline to November 14, 2016; the rebuttal expert disclosure deadline to
December 13, 2016; the discovery cut-off to January 30, 2017; the dispositive motions
deadline to March 2, 2017; and the final pretrial conference to May 2, 2017. (Id.) In the
order, the Magistrate Judge expressly stated: “No further extensions of these deadlines
6
will be granted absent extraordinary circumstances.” (Id.)
D.
First Motion to Compel Discovery
On September 22, 2016, Mr. Davis provided written responses to Defendant’s
interrogatories, and stated that his responses to the remaining RFPs were forthcoming.
(ECF No. 32 at 4.) On September 27, Defendant contacted John Davis to inquire when
Defendant might expect to receive Mr. Davis’s responses to the outstanding RFPs.
(Id.) Having received no reply, Defendant “again contacted Plaintiff’s counsel on
October 3, 2016, advising him that if he did not either provide the remaining RFP
responses or advise as to his availability to set an informal discovery conference by
October 5, 2016,” Defendant would file a motion to compel discovery. (Id.) Plaintiff’s
counsel did not respond and thus, on October 6, 2016, Def endant filed a Motion to
Compel Discovery. (ECF No. 32.) In the motion, Defendant asked the Court to compel
the production of documents that Defendant had requested from Mr. Davis almost ten
months prior. (Id.)
On October 20, 2016, Mr. Davis filed a response to Defendant’s Motion to
Compel Discovery. (ECF No. 35.) In the response, Mr. Davis conceded that he had
“failed to timely and properly respond to Defendant’s discovery responses,” but offered
various excuses. (Id. at 1–2.) In particular, Plaintiff noted that Mr. Davis’s “frequent
hospitalizations and [Plaintiff’s] counsel’s extended illness between August 2015, and
August 2016, have been the major factors in the delay.” (Id. at 2.) Moreover, Mr. Davis
noted that the “other delays that were occasioned subsequent to Plaintiff’s counsel’s
return in July from his medical hiatus had to do with the fact that in July and August
2016, counsel suffered the deaths of three young Black men close to counsel (two were
7
murdered, and one died of a drug overdose).” (Id.) On the same day, Mr. Davis
provided Defendant “with responses to the last of Defendant’s unanswered discovery
requests served January 19, 2016.” (ECF No. 37 at 1; see also ECF No. 35 at 2.)
On October 27, 2016, Defendant informed the Court that Mr. Davis’s discovery
responses appeared to be incomplete and provided the Court with several examples.
(ECF No. 37 at 2–3.) For instance, Defendant noted how in Mr. Davis’s response to an
interrogatory asking him to identify all of his private medical providers for the last ten
years, Mr. Davis listed three private medical providers. (Id. at 2.) In his response to
Defendant’s first RFP, however, Mr. Davis had listed four private medical providers.
(Id.)
On November 1, 2016, the Magistrate Judge held a hearing on Defendant’s
Motion to Compel Discovery. (ECF No. 38.) During the hearing, the Magistrate Judge
granted Defendant’s motion and extended the case deadlines for yet another 45 days.
(Id.) Specifically, the Magistrate Judge extended the expert witness disclosure deadline
to December 14, 2016; the rebuttal expert disclosure deadline to January 13, 2017; the
discovery cut-off to March 15, 2017; the dispositive motions deadline to April 17, 2017;
and the final pretrial conference to June 14, 2017. (Id.)
E.
Second Set of Discovery Requests
On December 20, 2016, Defendant served Mr. Davis with his Second Set of
Written Discovery (“Second Set”), along with a reminder that Mr. Davis’s responses
were due on January 19, 2017, which was three day’s before Defendant was to take his
8
deposition. (ECF No. 44 at 2.) 3 Defendant’s counsel further informed Mr. Davis “that
because she expects to refer to [Mr. Davis’s] responses to Defendant’s Second Set
during his deposition, Defendant will not agree to any extension of time to respond.”
(Id.)
On January 4, 2017, Defendant e-mailed John Davis, reminding him that
Mr. Davis’s deadline to respond to the Second Set was January 19. (Id.) Defendant
repeated this reminder on January 9, January 11, and January 17. (Id. at 3.) On
January 20, John Davis advised Defendant that “due to circumstances beyond our
control, we were unable to complete [Mr. Davis’s] responses to Defendant’s Second
[Set of] discovery requests.” (Id.) However, John Davis stated that he would have
Mr. Davis’s responses to the Second Set “completed by early next week.” (Id.) On
January 23, Defendant took Mr. Davis’s deposition without the benefit of having his
responses to the Second Set. (Id.)
At his deposition, Mr. Davis agreed to provide Defendant with his responses to
the Second Set by February 6, 2017. (Id.) On February 14, however, John Davis
contacted Defendant, “stating that he has been ‘seriously under the weather,’ but is
now ‘up and around,’” and that he “promises to deliver responses no later than
February 17th.” (Id.) On February 24, John Davis’s assistant e-mailed Defendant’s
counsel, informing her that John Davis had been “hospitalized on February 21st with
3
Plaintiff and Mr. Davis did not respond to Defendant’s Second Motion to Compel
Discovery (i.e., ECF No. 44), nor have they objected to any of the procedural history set forth in
the motion. Accordingly, for the purposes of this Order, the Court accepts as true Defendant’s
statements contained in the motion regarding the procedural history of this case. (See also
ECF No. 58 at 3 (Mr. Davis appears to concede that the procedural history recited in the
Recommendation (ECF No. 57) is correct).)
9
acute bronchitis, and is scheduled to return to work on February 27th.” (Id.)
On March 13, 2017, two days before the discovery cut-off, the parties filed
another Joint Motion to Amend Scheduling Order, again because of John Davis’s health
issues and inability to participate in discovery. (ECF No. 41.) The Magistrate Judge
granted the motion and extended the case deadlines for yet another 45 days. (ECF No.
43.) In particular, the Magistrate Judge extended the discovery cutoff to May 1, 2017;
the dispositive motions deadline to June 1, 2017; and the f inal pretrial conference to
July 31, 2017. (Id.)
On April 6, 2017, Defendant e-mailed John Davis and also left detailed voice
messages on his office and mobile numbers, reminding John Davis that discovery
responses to Defendant’s Second Set were overdue. (ECF No. 44 at 4.) Defendant
repeated this reminder on April 16, 17, and 19. (Id.) On April 20, John Davis e-mailed
Defendant, stating that “he is currently working with his client to complete the responses
to Defendant’s Second Set, but ‘will not have them’ until the morning of April 24th.” (Id.)
John Davis, however, did not provide the responses by that day. (Id.) On May 1,
discovery concluded. (See ECF No. 43.)
F.
Second Motion to Compel Discovery
On May 2, 2017, Defendant filed a Second Motion to Compel Discovery,
advising the Court that Mr. Davis had failed to respond to Defendant’s Second Set of
discovery requests, which were served on Mr. Davis in December 2016. (ECF No. 44.)
The Second Set comprised four RFPs, eight interrogatories, and two requests for
admission (“RFAs”). (Id. at 2.) As of May 2, however, Mr. Davis had provided only a
partial response to one of the four RFPs. (Id. at 1.) In the motion, Defendant made the
10
following statement:
[Mr. Davis’s] repeated and persistent delays are prejudicial
to Defendant. This case concerns events that took place in
2010 and late 2011. As a result of [Mr. Davis’s] delays, this
case has now been in discovery for over 15 months—eight
months past the date when it was originally meant to
conclude. At least one key witness has moved outside of
the subpoena power of this Court since the litigation began.
The whereabouts of 13 of [Mr. Davis’s] witnesses—most or
all of whom were Denver VA employees at the time of the
events giving rise to this lawsuit—are no longer known.
[Defendant has] had to take three depositions without the
benefit of [Mr. Davis’s] responses to Defendant’s Second
Set.
(Id. at 7 (citations omitted).) Therefore, Defendant requested that the Court “compel
[Mr. Davis] to respond in full to Defendant’s Second Set, deem Defendant’s RFAs
admitted, and award Defendant [his] reasonable expenses incurred in making [his
Second Motion to Compel Discovery].” (Id.)
While Defendant’s Second Motion to Compel Discovery was pending before the
Magistrate Judge, Defendant filed an Unopposed Motion to Amend Scheduling Order
on May 17, 2017. (ECF No. 46.) In the motion, Defendant informed the Court that,
despite repeated reminders, Mr. Davis had still not responded to Defendant’s Second
Set of discovery requests. (Id. at 1, ¶ 3.) Therefore, Defendant requested that the
Court convert the dispositive motion deadline from a fixed date to a floating date 30
days after Mr. Davis had produced the requested discovery responses, and that the
final pretrial conference be reset for a later date. (Id. at 2, ¶¶ 5–6.) On May 22, the
Magistrate Judge granted Defendant’s motion and vacated the June 1, 2017 dispositive
motion deadline and the final pretrial conference. (ECF No. 49.) In addition, the
Magistrate Judge set a hearing on Defendant’s Second Motion to Compel Discovery for
11
June 14. (ECF No. 48.)
On June 7, 2017, John Davis filed an unopposed motion to attend the hearing by
telephone, advising the Court that he “has been unable to travel for several weeks due
to [his] heavy schedule.” (ECF No. 50 at 1, ¶ 2.) Moreover, John Davis informed the
Court that he was unable to appear in person at the hearing because he was “in the
process of completing his fourth opposition to a dispositive motion in as many weeks”
and was “also in the middle of an evidentiary hearing before the EEOC in Baltimore.”
(Id. at 1, ¶¶ 2–3.) The Magistrate Judge granted the motion the next day. (ECF No.
52.)
On June 14, 2017, the Magistrate Judge held a hearing on Defendant’s Second
Motion to Compel Discovery. (ECF No. 53.) The following is the Magistrate Judge’s
description of what transpired:
During the hearing, the court provided Plaintiff’s counsel
ample opportunity to explain why [Mr. Davis] was not
participating in discovery and prosecuting the case.
Plaintiff’s counsel apologized to the court and the defendant,
[and “admitted to the court . . . that he had f ailed to respond
to Defendant’s discovery requests because of his own busy
schedule and Plaintiff’s counsel’s representation that [Mr.
Davis] had nothing further to produce”]. The court advised
Plaintiff’s counsel that, regardless, [Mr. Davis] had a duty to
respond to the discovery requests that had been pending
since December 2016, and Plaintiff’s counsel stated he
understood that. Plaintiff’s counsel advised he would be
able to respond to the discovery responses by June 19,
2017. . . . The court warned Plaintiff’s counsel that [Mr.
Davis’s] failure to comply with the court’s orders and failure
to respond to the discovery requests would result in this
court’s recommendation that the case be dismissed with
prejudice pursuant to Ehrenhaus v. Reynolds, 965 F.2d 916
(10th Cir. 1992).
(ECF No. 57 at 3–4, 6.)
12
The Magistrate Judge then granted Defendant’s Second Motion to Compel
Discovery and ordered Plaintiff to “respond to Defendant’s Second Set of Written
Discovery [Doc. No. 44-1], as discussed, on or before June 19, 2017.” (ECF No. 53
(emphasis in original).) The Magistrate Judge explicitly noted that “[f]ailure to
respond” by June 19 “may result in sanctions” against Mr. Davis, “including
dismissal of the case.” (Id. (emphasis in original).) In addition, the Magistrate Judge
ordered that Mr. Davis’s objections to the Second Set were deemed waived and that
the RFAs included in the Second Set were deemed admitted. (Id.) Moreover, the
Magistrate Judge awarded Defendant costs and attorneys’ fees against John Davis
which were incurred in pursuing Defendant’s Second Motion to Compel Discovery. (Id.)
The Magistrate Judge also once again extended the dispositive motions deadline until
July 19, 2017, and set the final pretrial conference for October 2, 2017. (ECF No. 55.)
G.
Recommendation of Dismissal for Failure to Prosecute
On June 26, 2017, Defendant filed a status report advising the Court that the
discovery ordered to be produced on or before June 19, 2017, had not been received
and that neither Mr. Davis or John Davis had communicated with Defendant regarding
the outstanding discovery. (ECF No. 56.) On June 27, the Magistrate Judge
recommended to the undersigned “that this case be dismissed with prejudice for failure
to serve verified responses to written discovery, failure to comply with the Federal Rules
of Civil Procedure and the Local Rules for the District Court for the District of Colorado
[‘Local Rules’], and failure to prosecute” (the “Recommendation”; ECF No. 57). (Id. at
7.) On July 11, 2017, Mr. Davis provided discovery responses to Defendant’s Second
Set of discovery requests, which Defendant had served on Mr. Davis in December
13
2016. (ECF No. 63-1 at 2.)
On July 12, 2017, John Davis filed an objection to the Recommendation, offering
the Court several reasons why the case should not be dismissed. (ECF No. 58.) First,
John Davis argued that Mr. Davis should not be punished for the conduct of his
attorney. (Id. at 3.) Second, John Davis discussed at length how he suffers from
various health problems, including clinical depression, and how the combination of
these were hindering his ability to prosecute the case. (Id. at 3–5, 8.) In his conclusion,
John Davis apologized to the Court and the parties for his “failures and omissions in this
case” and noted that he “is making every effort to stay current with his cases and
workload, but due to his health problems, he gets overwhelmed, which causes [him] to
fall into depression.” (Id. at 8.)
While the Recommendation was pending before this Court, Defendant filed two
unopposed motions to amend the Scheduling Order. (ECF Nos. 60 & 65.) In the
motions, Defendant asked that the dispositive motions deadline and the final pretrial
conference be vacated until after the Recommendation had been resolved by this
Court. (Id.) Both motions were subsequently granted by the Magistrate Judge. (ECF
Nos. 62 & 67.)
H.
Alternative Sanctions
Considering the ultimate sanction of dismissal with prejudice proposed by the
Magistrate Judge, the Court set a hearing for December 15, 2017, to discuss the
Recommendation with the parties. (ECF No. 70.) At the hearing, the Court did not
rule on the Recommendation, but rather ordered Defendant to file a proposed sanction
short of dismissal by December 29, 2017, and ordered Mr. Davis to respond with a
14
suggested alternative form of sanction by January 5, 2018. (ECF No. 71.) In addition,
based on John Davis’s representation to the Court that he had retained Denv er attorney
John Mosby (“Mr. Mosby”) as his local counsel, the Court ordered that if Mr. Mosby had
not entered an appearance by January 5, 2018, then Mr. Davis must submit a filing
which addresses the definitiveness or discussions with respect to retaining Mr. Mosby
as co-counsel. (Id.; see also ECF No. 75.)
In response, Defendant proposed three sanctions. (ECF No. 72.) First,
Defendant asked for the exclusion of certain witnesses’ testimony. (Id. at 3.)
Specifically, Defendant claimed that, “[i]n contravention of the requirements of Fed. R.
Civ. P. 26(a)(1)(i), neither [Mr. Davis’s] initial disclosures, provided in January 2016, nor
his ‘All-inclusive Witness List,’ provided on November 4, 2016, includes any contact
information for any of [Mr. Davis’s] 29 witnesses.” (Id.) Defendant asserted that he
requested this information again in an interrogatory on December 20, 2016, to which
Mr. Davis did not respond. (Id.; see ECF No. 44-1 at 5.) Moreover, Defendant claims
that his counsel and the VA “independently sought to locate each of [Mr. Davis’s]
witnesses among its personnel records, but did not have current contact information for
13 of [Mr. Davis’s] 29 witnesses.” (ECF No. 72 at 3.) Thus, Defendant asserted that he
“has been prejudiced because he was unable to depose any of these 13 witnesses
during the 18-month discovery period in this case” and therefore “[P]laintiff should be
precluded from introducing the testimony of the 13 witnesses.” (Id. at 4.)
Second, Defendant proposed that Mr. Davis be ordered to produce his complete
tax returns for 2015, 2016, and 2017. (Id.) Defendant claims that he had requested
these tax returns in his Second Set of discovery requests, but the documents were
15
never provided by Mr. Davis. (Id. at 4–5; see ECF No. 63-1 at 20.)
Third, Defendant proposed a supplemental deposition of Mr. Davis “for the
limited purpose of questioning him about the information contained in his belated
discovery responses.” (ECF No. 72 at 6.)
On January 6, 2018, Mr. Davis filed his response to Defendant’s proposed
sanctions, a day after the January 5 deadline set forth in the Court’s prior order. (ECF
Nos. 71 & 73.) In the response, Mr. Davis argued that all of his witnesses were
employees at the Denver Regional Office of the VA and thus “Defendant was in
possession of the contact information for all 29 persons named on Plaintiff’s witness
list.” (Id. at 2.) Mr. Davis, however, did not object to providing Defendant with his
income tax returns or undergoing a supplemental deposition. (Id.)
Mr. Davis also informed the Court that Mr. Mosby “had agreed to come on this
case as [Mr. Davis’s] local counsel” and that he anticipates that “Mr. Mosby’s Entry of
Appearance will be made early on January 8, 2018.” (Id. at 3–4.) On January 24,
however, Plaintiff filed a status report notifying the Court that Mr. Mosby “would not be
able to participate in this case.” (ECF No. 75.) John Davis advised the Court that he
was currently interviewing “several other attorneys” and had also “reached out to his
alma mater, the University of Denver College of Law[,] to get a referral for a law student
to help with the case files.” (Id.) Given these efforts, John Davis requested until
“February 5, 2018, to secure local counsel for this case.” (Id.) Mr. Davis, however, did
not secure local counsel by that date.
I.
Substitution of Plaintiff
On January 24, 2018, Mr. Davis passed away. (ECF No. 77.) Nearly a month
16
later, on February 20, John Davis filed a notice of suggestion of death. (Id.) On May 2,
2018, John Davis filed an unopposed Motion for Substitution of Party. (ECF No. 78.) In
the motion, John Davis asked the Court to substitute Celina R. Davis, widow and
successor in interest to Mr. Davis, as plaintiff in this lawsuit. (Id.) Later that day, the
Court granted the motion. (ECF No. 79.)
J.
Order Overruling Recommendation
On May 29, 2018, the Court overruled the Magistrate Judge’s recommendation
that this case be dismissed with prejudice for failure to serve verified responses to
written discovery, repeated failure to comply with the Federal Rules of Civil Procedure
and the Local Rules, and failure to prosecute. (ECF No. 80.) The Court concluded
“that in this case, the aggravating factors do not ‘outweigh the judicial system’s strong
predisposition to resolve cases on their merits’ as required under the Ehrenhaus test
and thus a dismissal with prejudice is not warranted at this time.” (Id. at 7–8.)
In regard to Defendant’s proposed sanctions in lieu of dismissal, the Court
ordered that discovery be reopened for 120 days (until September 26, 2018) to permit
Defendant to depose any of the 13 witnesses referenced in the pleadings which he had
not previously been able to depose. (Id. at 9.) In addition, the Court ordered Plaintif f to
provide Mr. Davis’s 2015, 2016, and 2017 tax returns to Defendant. (Id. at 10.) The
Court, however, noted that it could no longer grant a supplemental deposition of
Mr. Davis as he had passed away. (Id.) Moreover, the Court ordered the parties to
jointly contact the Magistrate Judge’s chambers for the purpose of scheduling a status
conference. (Id. at 10–11.)
K.
Local Counsel
17
On June 11, 2018, the Magistrate Judge held the status conference, during
which the parties and the Magistrate Judge discussed Plaintiff’s efforts in complying
with this Court’s prior order (ECF No. 71), directing Plaintiff to have local counsel
entered into the case by January 5, 2018. (ECF No. 85.) After the conference, the
Magistrate Judge ordered Plaintiff to have local counsel entered into the case no later
than July 11, 2018. (Id.)
On July 12, 2018, however, Plaintiff filed an Unopposed Motion for Additional
Time to Obtain Local Counsel. (ECF No. 86.) In the m otion, John Davis informed the
Court that he “wanted to talk to all of the attorneys recommended [to him] before
making a suggestion to the Plaintiff.” (Id.) Thus, “[o]ut of an abundance of caution,
Plaintiff request[ed] an extension to July 20, 2018 for [her] local counsel to make his or
her appearance.” (Id.) The next day, the Magistrate Judge granted the motion and
ordered Plaintiff to have local counsel enter his or her appearance no later than July 20.
(ECF No. 88.) On July 19, attorney Lisa Rae Sahli (“Ms. Sahli”) entered an appearance
on behalf of Plaintiff. (ECF No. 89.)
L.
Further Extensions
On June 23, 2018, the Magistrate Judge once again reset the dispositive
motions deadline for October 26, 2018, and the final pretrial conference for January 14,
2019. (ECF No. 90.) On September 26, 2018, Defendant filed an Unopposed Motion
for a 30-day Extension of the Discovery and Dispositive Motion deadlines. (ECF No.
92.) In the motion, Defendant discussed how the Court reopened discovery for 120
days, until September 26, for the limited purpose of allowing Defendant to depose
certain witnesses which he had not previously been able to depose. (Id. at 2; see ECF
18
No. 80 at 10.) Defendant noted, however, that no discovery could be conducted during
the majority of the 120 days due to John Davis’s illnesses and the lack of co-counsel.
(ECF No. 92 at 2–3.)
Defendant further noted that, on August 1, 2018, Defendant’s counsel had asked
John Davis to identify which of Plaintiff’s potential witnesses she would mostly likely call
at trial so that Defendant could prioritize his depositions. (Id. at 2.) Despite multiple
requests, however, Defendant did not receive the requested information until
September 24, which was two days before the renewed discovery deadline. (Id.) The
Magistrate Judge subsequently granted the motion and yet again extended the
discovery deadline until October 26, 2018, and the dispositiv e motion deadline until
November 26, 2018. (ECF No. 94.)
M.
Motion for Summary Judgment
On November 26, 2018, Defendant filed a Motion for Summary Judgment
(“Motion for Summary Judgment”; ECF No. 95). In the motion, Defendant claims that
he is “entitled to summary judgment on each of Plaintiff’s three claims, either because
Plaintiff cannot make out a prima facie case, because Plaintiff’s claims are procedurally
infirm, or both.” (Id. at 19.) Pursuant to D.C.COLO.LCivR 56.1(a), Plaintiff had until
December 17, 2018, to file a response.
On December 17, 2018, Plaintiff filed a Motion for Extension of Time to Respond
to Defendant’s Motion for Summary Judgment (ECF No. 98) and a Motion to Continue
Final Pretrial Conference (ECF No. 99). In the motions, Plaintiff informed the Court that
John Davis underwent heart surgery on November 27, 2018. (ECF Nos. 98 at 1, ¶ 3 &
99 at 1, ¶ 3 .) In addition, Plaintiff notified the Court that John Davis “was unable to
19
work for several weeks prior to his surgery, due to his illness, and because of his age
(75), his physicians have ordered [John Davis] to spend 30 days post-surgery in bed,
and to take at least 60 days off work.” (ECF Nos. 98 at 2, ¶ 4 & 99 at 1, ¶ 4 .) Thus,
Plaintiff requested that her deadline to respond to Def endant’s Motion for Summary
Judgment be extended from December 17, 2018, until February 18, 2019, and that the
final pretrial conference be reset to or after March 18, 2019. (ECF Nos. 98 at 2, ¶ 7 &
99 at 2, ¶ 9 .) Later that day, the Magistrate Judge granted Plaintiff’s two motions and
extended Plaintiff’s deadline to respond to Defendant’s Motion for Summary Judgment
until February 18, 2019 and reset the final pretrial conference for March 25, 2019.
(ECF Nos. 101 & 102.)
On February 12, 2019, Plaintiff filed a second Motion for Extension of Time to
Respond to Defendant’s Motion for Summary Judgment. (ECF No. 103.) In the
motion, Plaintiff asked the Court to further extend her deadline until February 25, 2019,
as John Davis was still recovering from heart surgery. (Id.; see ECF Nos. 103-1 & 104.)
On February 13, the Court granted the motion an extended Plaintiff’s deadline to file a
response until “February 25, 2019.” (ECF No. 104 (emphasis in original).) In the
Order, the Court expressly noted: “NO FURTHER EXTENSIONS WITH RESPECT TO
THIS FILING WILL BE GRANTED.” (Id. (emphasis in original).)
N.
Pending Motion #1
On March 11, 2019, Defendant filed a Motion to Vacate the Final Pretrial
Conference and Deadline for Submitting a Proposed Final Pretrial Order (“Motion to
Vacate Deadlines”; ECF No. 105). In the motion, Defendant requests that the Court
vacate the final pretrial conference and the deadline for filing a proposed final pretrial
20
order, and reset them, if necessary, after the Court rules on Defendant’s Motion for
Summary Judgment. (Id.)
Later that day, the Magistrate Judge postponed the final pretrial conference and
the deadline for filing a proposed final pretrial order and noted that they would be reset
at a later date. (ECF No. 107.) In addition, the Magistrate Judge ordered Plaintiff to file
a response to Defendant’s Motion to Vacate Deadlines “[n]o later than March 18, 2019.”
(Id.)
O.
Pending Motion #2
On March 21, 2019, Ms. Sahli moved for the Court to (1) extend Plaintiff’s time to
respond to Defendant’s Motion to Vacate Deadlines; (2) grant Plaintiff leave to seek
substitute lead counsel; and (3) set a status conf erence to determine outstanding
scheduling issues. (ECF No. 109.) In support, Ms. Sahli discusses how at no time prior
to Plaintiff’s March 18 deadline to submit a response to Defendant’s Motion to Vacate
Deadlines “did [John] Davis advise anyone that he was unable to, or would not, prepare
a timely response to Defendant’s Motion.” (Id. at 3, ¶ 13.) Instead, Ms. Sahli alleges
that John Davis had “indicated by e-mail” on March 13 “that he would submit a
response to the motion.” (Id. at 2, ¶ 4.) In particular, John Davis stated in the March 13
e-mail that it was taking him “a lot more time to get back to work than even [his] doctors
imagined,” but that “[he] will file o0pposition [sic] to all of the VA’s motions.” (ECF No.
111 at 3, ¶ 12.)
In addition, in her filing Ms. Sahli discusses how she had been advised by
Plaintiff’s son that Plaintiff “felt she needed to proceed with finding substitute counsel”
on March 18, 2019, since “her efforts to communicate with [John] Davis were
21
unsuccessful.” (ECF No. 109 at 2, ¶ 5.) Moreover, Ms. Sahli notes that she had only
agreed to undertake a limited role in this case, and that John Davis expressly agreed to
maintain primary responsibility. (Id. at 2, ¶ 6.) Thus, Ms. Sahli asserts that due to “the
sensitivity and complexity of the facts leading to this current situation, Plaintiff requests
that this matter be set for a status conference.” (Id. at 2, ¶ 8.)
P.
Pending Motion #3
On March 22, 2019, Plaintiff moved for the Court to modify the Scheduling Order
and extend Plaintiff’s time to respond to Defendant’s Motion for Summary Judgment.
(ECF No. 111.) In support, Ms. Sahli once again discusses how she had only agreed to
take on a limited role in this case and how John Davis had assured her and Plaintiff
before the February 25, 2019 deadline that he did not require her assistance in
preparing Plaintiff’s response to Defendant’s Motion for Summary Judgment. (Id. at
2–4, ¶¶ 5, 7, 9, 12, 16.)
Plaintiff further asserts that the Court has discretion to extend Plaintiff’s time to
respond to Defendant’s Motion for Summary Judgment and amend the Scheduling
Order because there was “good cause” for Plaintiff’s delay under Rule 16(b)(4) and
Plaintiff’s failure to act was due to “excusable neglect” under Rule 6(b)(1)(B). (Id. at
4–8.) Plaintiff claims that “[g]ood cause is established in this instance by [John] Davis’
sudden deterioration in health and unexpected inability to communicate his
circumstances so that the summary judgment response deadline could be met.” (Id. at
5, ¶ 21.) Plaintiff also alleges that her failure to timely submit her response to
Defendant’s Motion for Summary Judgment was due to excusable neglect. (Id. at 6–8.)
In particular, Plaintiff discusses how this failure “was due to a sudden, unforseen
22
deterioration in [John] Davis’ health condition,” and how “[p]rior to the deadline, Plaintiff
and her local counsel had no notice from [John] Davis that he would be unable to
submit the response.” (Id. at 6–7, ¶ 23.)
In regard to “the length of the requested extension[s],” Plaintiff states that she
anticipates that substitute counsel can be retained by April 12, 2019, but that she is
uncertain how long it will take for the new counsel to become up-to-date with the case
files in order to prepare a response to Defendant’s Motion for Summary Judgment. (Id.
at 8, ¶ 29.) Accordingly, Plaintiff requests that the Court “set this matter for a status
conference so that the logistics can be discussed and appropriate deadlines set,” or
extend Plaintiff’s deadline to respond by an additional 90 days from the current
February 25, 2019 deadline, which would be until May 26, 2019. (Id. at 8, ¶ 30.) As of
April 15, 2019, substitute counsel has not entered an appearance on behalf of Plaintiff.
II. LEGAL STANDARD
Rule 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with [the
Federal Rules of Civil Procedure] or a court order, a defendant may move to dismiss
the action or any claim against it.” Fed. R. Civ. P. 41(b). “Although the language of
Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been
interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to
prosecute or comply with the rules of civil procedure or court’s orders.” Gustafson v.
Luke, 696 F. App’x 352, 354 (10th Cir. 2017); see also Link v. Wabash R.R., 370 U.S.
626, 630–32 (1962).
“If the dismissal is with prejudice,” as it is in this case, “the district court must
apply the factors [the Tenth Circuit] listed in Ehrenhaus v. Reynolds, 965 F.2d 916 (10th
23
Cir. 1992)—namely, (1) the degree of actual prejudice to the defendant; (2) the amount
of interference with the judicial process; (3) the litigant’s culpability; (4) whether the
court warned the noncomplying litigant that dismissal of the action was a likely sanction;
and (5) the efficacy of lesser sanctions.” Banks v. Katzenmeyer, 680 F. App’x 721, 724
(10th Cir. 2017) (internal quotation marks omitted).
Under this framework, “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)
(quoting Ehrenhaus, 965 F.2d at 921). Moreover, “[t]hese factors do not constitute a
rigid test; rather, they represent criteria for the district court to consider prior to imposing
dismissal as a sanction.” Ehrenhaus, 965 F.2d at 921.
III. ANALYSIS
Plaintiff’s failure to move this case forward has been manifest, to the point that it
has been the oldest case on this Court’s civil docket for several months. Plaintiff has
been given more than ample opportunity to prosecute her lawsuit and comply with
Court Orders, but she has repeatedly failed to do either. On the other hand, Def endant
has diligently attempted to move this case along, but has been unable to due to
Plaintiff’s noncompliance. Accordingly, the Court has determined, as discussed with
respect to the Ehrenhaus factors below, that the aggravating factors in this case clearly
outweigh the judicial system’s strong predisposition to resolve cases on their merits.
A.
Degree of Actual Prejudice to Defendant
The Court finds that the “degree of actual prejudice to the defendant,”
24
Ehrenhaus, 965 F.2d at 921, has been considerable. First, Def endant has been
prejudiced in obtaining prompt adjudication of the claims against him. This lawsuit was
originally filed in July 2015 and concerns events that took place in 2009, 2010, and
2011. (See ECF No. 1.) Plaintiff’s failure to prosecute and comply with Court Orders,
the Federal Rules of Civil Procedure, and the Local Rules, however, have caused this
case to needlessly drag on for nearly four years. A review of the record clearly shows
that Defendant has diligently attempted to move this case forward, but has been unable
to due to Plaintiff’s repeated failure to prosecute and timely comply with Court Orders.
Second, Plaintiff’s failure to prosecute has caused Defendant to suffer actual
prejudice as important witnesses are no longer available. For example, in a joint motion
for a status conference filed three years ago, the parties advised the Court that
Defendant had concerns about “potential prejudice” as at least one w itness had retired,
another had left the VA for another agency, and how other witnesses had moved out of
Colorado. (ECF No. 26 at 2, ¶ 7.) Almost 21 months ago, in Defendant’s most recent
advisement to the Court of prejudice he was suffering due to Plaintiff’s failure to
prosecute, Defendant informed the Court that “at least one key witnesses has moved
outside of the subpoena power of this court” and that the “whereabouts of nine of
Plaintiff’s witnesses, most or all of whom were VA employees at the time of the events
giving rise to this lawsuit, are no longer known to either party.” (ECF No. 63 at 3–4.) It
is entirely reasonable to assume that the amount of actual prejudice to Defendant has
only increased over the last 21 months.
Third, Plaintiff’s failure to prosecute has caused Defendant to suffer actual
25
prejudice as Defendant was not able to depose Mr. Davis prior to his death about
information contained in his belated discovery responses. Plaintiff was ordered to
respond to Defendant’s Second Set of discovery requests by January 19, 2017, but did
not do so until July 11, 2017—more than five months after Mr. Davis’s deposition took
place. Unfortunately, before the Court could rule on whether it should reopen
Mr. Davis’s deposition to allow Defendant to question him about the information
contained in his belated discovery responses, Mr. Davis passed away. Thus,
Defendant was unable to depose Mr. Davis about the information contained in his
discovery responses due to Plaintiff’s dilatoriness and neglect.
Fourth, Defendant has been prejudiced in that he has been f orced to expend
time, money, resources, and effort over the last four years trying to move forward a
case that was initiated by Plaintiff. This burden has been significantly exacerbated by
Plaintiff’s repeated failure to prosecute and comply with Court Orders, the Federal
Rules of Civil Procedure, and the Local Rules. Plaintiff’s noncompliance has required
Defendant to prepare and file numerous documents, such as (1) a motion to reset the
Scheduling Conference (ECF No. 14); (2) a motion for a status conference (ECF No.
26); (3) seven motions to amend the Scheduling Order (ECF Nos. 29, 41, 46, 60, 65,
92, 105); (4) two motions to compel (ECF Nos. 32 & 44); (5) a status report informing
the Court of Plaintiff’s failure to comply with a Court Order (ECF No. 56); and (6) a
document detailing Defendant’s proposed sanctions against Plaintiff (ECF No. 72). In
addition, Defendant’s counsel has had to appear at hearings on each of Defendant’s
motions to compel (ECF Nos. 38 & 53), as well as a hearing on the Recommendation
(ECF No. 71). Moreover, Plaintiff’s repeated delays in responding to Defendant’s
26
written discovery requests caused discovery in this matter to drag on for nearly two
years.
After a careful review of the record, the Court finds that it is beyond any
reasonable dispute that Plaintiff’s neglect of this case has prejudiced the Defendant by
causing him to expend resources trying to move Plaintiff’s case forward. Accordingly,
the Court finds that this factor weighs in favor of dismissal.
B.
Degree of Interference with the Judicial Process
The “amount of interference with the judicial process,” Ehrenhaus, 965 F.2d at
921, has undoubtably been significant. Plaintiff’s failure to prosecute this case and
comply with numerous Court Orders, the Federal Rules of Civil Procedure, and the
Local Rules evidences a lack of respect for the Court and the judicial process. In
particular, Plaintiff’s neglect has caused the Court to expend unnecessary time and
effort as the Court has been required to entertain over eighteen motions arising out of
Plaintiff’s cumulative failures to timely prosecute this case, including at least fifteen
motions to extend various deadlines. (See, e.g., ECF Nos. 14, 26, 29, 32, 41, 44, 46,
60, 65, 78, 86, 92, 98, 99, 103, 105, 109, 111.)
The Court and the Magistrate Judge have held several hearings in order to
address Plaintiff’s repeated failure to prosecute this case and comply with Court
Orders. This includes two separate hearings on motions to compel discovery that was
many months overdue (ECF Nos. 38 & 53), a hearing on the Magistrate Judge’s
recommendation that the case be dismissed with prejudice due to Plaintiff’s failure to
prosecute (ECF No. 71), and a status conference to discuss whether Plaintiff had hired
27
local counsel as she was directed to do more than five months prior (ECF No. 85). In
addition, Plaintiff’s repeated failure to respond to Defendant’s discovery requests during
the eighteen month period discovery was open caused the Court to reopen discovery
for an additional 120 days. Moreover, Plaintiff’s failure to respond to Defendant’s
Motion for Summary Judgment by the original due date of December 17, 2018, has
interfered with this Court’s ability to manage its docket.
In sum, Plaintiff’s failure to prosecute and comply with Court Orders, the Federal
Rules of Civil Procedure, and the Local Rules has caused the Court to issue num erous
orders and hold several hearings. This in turn has increased the workload of the Court
and hindered its ability to diligently manage its docket, and has taken the Court’s
attention away from other matters where the parties have fulfilled their obligations and
are deserving of prompt resolution of their issues. Therefore, the Court finds that this
factor weighs in favor of dismissal.
C.
Culpability of Plaintiff
The “culpability of the litigant,” Ehrenhaus, 965 F.2d at 921, is clear and blatant,
given Plaintiff’s repeated and willful violation of Court Orders and failure to prosecute
this case. While it can be argued that many of the delays can be attributed to counsel
John Davis and his health issues, the Court finds that Plaintiff is clearly responsible for
failing to comply with her obligations in this litigation.
The Court was first advised of John Davis’s health issues in December 2015.
(ECF No. 14.) It is likely that Plaintiff has more knowledge than the Court about the
history of John Davis’s health issues and his capability to adequately represent her in
this action, given that John Davis is the brother in law, and was the brother,
28
respectively, of Plaintiff and Mr. Davis. Yet, Plaintiff and Mr. Davis ignored this reality
for a very long period of time, and continued to let John Davis be their attorney in this
action, even as his health began to decline over the last four years. (See, e.g., ECF
Nos. 14, 26, 29, 32, 35, 41, 44, 58, 98, 99, 103, 109, 111.) Y et, Plaintiff did not seek
substitute counsel, other than a “law student” or local counsel to “help with the case
files,” until March 21, 2019. (ECF No. 109; see also ECF No. 75.)
These are not the actions of a pro-active, diligent litigant, but rather are
emblematic of a consistent, pervasive pattern by Plaintiff and her deceased husband to
blind themselves, since at least late 2015, to the self-evident fact that they needed to
retain new counsel years ago, counsel who had the physical health and legal
experience to competently litigate their claims.
Moreover, “[t]here is certainly no merit to the contention that dismissal of
[Plaintiff’s] claim because of [her] counsel’s unexcused conduct imposes an unjust
penalty on the client.” Link, 370 U.S. at 633. As the United States Supre me Court has
observed, a Plaintiff voluntarily chooses his or her attorney as his representative, and
cannot subsequently “avoid the consequences of the acts or omissions of this freely
selected agent.” Id. at 633–34. Any other rule would entail “visiting the sins of plaintiff’s
lawyer upon the defendant.” Callahan v. Poppell, 471 F.3d 1155, 1161 (10th Cir. 2006)
(emphasis added).
Although more is surely not needed in this regard, the Court further notes that
Plaintiff’s response to Defendant’s Motion for Summary Judgment was due on
December 17, 2018. On that date, Plaintiff filed a motion requesting 63 additional days
to respond as John Davis had undergone heart surgery on November 27, 2018. (ECF
29
No. 98.) Thus, Plaintiff waited until the deadline date, and 20 days after John Davis
had undergone heart surgery, to inform the Court and seek an extension. The
Magistrate Judge granted Plaintiff’s motion and extend her time to respond until
February 18, 2019. (ECF No. 101.)
On February 12, however, Plaintiff filed yet another motion asking for a second
of extension of one week. (ECF No. 103.) The motion was granted and Plaintiff was
given until February 25 to file a response, with the Court explicitly noting: “NO
FURTHER EXTENSIONS WITH RESPECT TO THIS FILING WILL BE GRANTED.”
(ECF No. 104 (emphasis in original).) Plaintiff, however, did not file a response by the
February 25 deadline. Instead, Plaintiff waited another month to file a motion asking for
a third extension. (ECF No. 111.) In that motion, Plaintiff asks the Court to extend the
deadline until May 26, 2019.
In addition, Defendant filed a Motion to Vacate Deadlines on March 11, 2019.
(ECF No. 105.) Later that day, the Magistrate Judge ordered Plaintiff to file a response
to the motion “[n]o later than March 18, 2019.” (ECF No. 107.) Plaintif f, however, failed
to comply with this Court Order as she did not file a response by the March 18 deadline.
Rather, Plaintiff filed a motion on March 21 asking the Court to extend her time to
respond. (ECF No. 109.) In the motion, Plaintiff does not specify how long of an
extension she needs, but asks the Court to set the m atter for a status conference. (Id.)
This pervasive, consistent and indeed dogged pattern of repeated delays and
noncompliance with Court Orders, the Federal Rules of Civil Procedure, and the Local
Rules has been rampant in this case since it was filed in 2015. Thus, the Court finds
30
that this factor weighs heavily in favor of dismissal as Plaintiff is clearly culpable for her
noncompliance and for failing to prosecute this case.
D.
Advance Notice of Sanction of Dismissal
The Court finds that it has amply and clearly “warned the [Plaintiff] in advance
that dismissal of the action would be a likely sanction for noncompliance.” Ehrenhaus,
965 F.2d at 921. While these warnings did not immediately precede this Order, they
were clearly given to Plaintiff earlier in this case.
The Court notes, however, that “a warning is not a sine qua non for dismissal.
On the contrary, no notice of any type need be given by the court prior to dismissal.”
Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1152 (10th Cir. 2007); see also Link,
370 U.S. at 633 (“[W]hen circumstances make such action appropriate, a District Court
may dismiss a complaint for failure to prosecute even without affording notice of its
intention to do so.”) Indeed, the Tenth Circuit has held that “constructive notice—that
is, notice (1) without an express warning and (2) objectively based upon the totality of
the circumstances (most importantly, the trial court’s actions or words) is sufficient.”
Rogers, 502 F.3d at 1152 (concluding litigant received constructive notice where district
court had earlier entered show cause order warning that failure to file status report may
result in dismissal); see also Ecclesiastes, 497 F.3d at 1150 (10th Cir. 2007)
(concluding litigant had constructive notice where defendants had earlier filed Rule
41(b) motion to dismiss and district court had warned parties about possibility of
sanctions).
Thus, even if Plaintiff were to argue that the Court did not provide an express
31
warning immediately prior to this Order that her case could be dismissed due to her
noncompliance, the Court finds that, based upon the totality of the circumstances, it is
beyond dispute that Plaintiff received at least constructive, if not actual notice that
dismissal with prejudice was a sanction being considered by the Court.
Plaintiff was first warned at the June 14, 2017 hearing on Defendant’s Second
Motion to Compel Discovery that her noncompliance could result in the dismissal of this
lawsuit. (ECF Nos. 53 & 57 at 3–4.) At the hearing, the Magistrate Judge explicitly
warned: “Plaintiff’s failure to comply with the court’s orders and failure to respond to the
discovery requests would result in this court’s recommendation that the case be
dismissed with prejudice pursuant to Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir.
1992).” (ECF No. 57 at 3–4.) This warning was reiterated in the Magistrate Judge’s
written order, which stated that Plaintiff’s failure to comply with the order “may result in
sanctions including dismissal of the case.” (ECF No. 53 (emphasis in original).)
When Plaintiff failed to comply with the order, the Magistrate Judge
recommended that “this case be dismissed with prejudice for failure to serve verified
responses to written discovery, failure to comply with the Federal Rules of Civil
Procedure and the Local Rules for the District Court for the District of Colorado, and
failure to prosecute.” (ECF No. 57 at 7.) In the Recommendation, the Magistrate
Judge provided specific instances of Plaintiff’s noncompliance and failure to prosecute.
(ECF No. 57.)
While the Court ultimately did not adopt the Recommendation, that does not
mean that Plaintiff was no longer at risk of having her case dismissed for failure to
32
prosecute and comply with Court Orders, the Federal Rules of Civil Procedure, and the
Local Rules. Indeed, in its very Order overruling the Recommendation, the Court
expressly stated that “[w]hile the Tenth Circuit has affirmed dismissal with prejudice
under similar circumstances, . . . the Court finds that exercising discretion in favor of
dismissal with prejudice will not serve the interest of justice at this time.” (Id. at 8
(emphasis added).) Thus, the Court expressly left open the possibility—and indeed the
probability—that such a dismissal could in the future be warranted by Plaintiff’s
continued failure to prosecute and persistent noncompliance with the Court’s orders.
After the Court overruled the Recommendation, Plaintiff continued to fail to
prosecute and comply with Court Orders, the Federal Rules of Civil Procedure, and the
Local Rules. Currently, Plaintiff is in noncompliance with at least two Court Orders.
Namely, after two extensions, Plaintiff’s deadline to respond to Defendant’s Motion for
Summary Judgment was postponed until February 25, 2019. (ECF Nos. 98, 101, 103,
104.) In the Order granting the last extension, the Court expressly noted: “NO
FURTHER EXTENSIONS WITH RESPECT TO THIS FILING WILL BE GRANTED.”
(ECF No. 104 (emphasis in original).)
Plaintiff, however, failed to comply with the Court Order as she did not file a
response by the February 25 deadline. Instead, Plaintiff filed a motion on March 22
asking the Court to extend her time to respond until May 26, 2019. (ECF No. 111 at 8,
¶ 30.) Similarly, Plaintiff was ordered to respond to Defendant’s Motion to Vacate
Deadlines “[n]o later than March 18, 2019.” (ECF No. 107.) Plaintif f, however, failed to
comply with this Court Order as she did not file a response by the March 18 deadline.
33
Instead, Plaintiff filed a motion on March 21 asking the Court to extend her time to
respond. (ECF No. 109.)
In sum, the Court finds that Plaintiff was clearly and unambiguously warned in
advance on more than one occasion that dismissal of her action with prejudice could be
a likely sanction for her noncompliance. In particular, the Court finds that the
Magistrate Judge’s verbal warning at the June 14, 2017 hearing (ECF No. 57 at 3–4),
the warning reiterated in the Magistrate Judge’s written order (ECF No. 53), and the
Recommendation (ECF No. 57) amounted to an “express warning,” and at the very
least provided Plaintiff with constructive notice. Accordingly, Plaintiff cannot plausibly
argue surprise that her failure to prosecute this case and comply with Court Orders
could result in the sanction of dismissal with prejudice. Therefore, the Court finds that
this factor weighs in favor of dismissal.
E.
Efficacy of a Lesser Sanction
Lastly, and significantly, the Court considers whether lesser sanctions would be
enough. Ehrenhaus, 965 F.2d at 921. This factor strongly weighs in favor of dismissal.
The record clearly shows that lesser sanctions imposed against Plaintiff are not (and
indeed have never been) effective. Namely, following the hearing on Defendant’s
Second Motion to Compel Discovery, the Magistrate Judge ordered that: (1) Plaintiff’s
objections to Defendant’s Second Set of discovery requests be deemed waived; (2) the
RFAs contained in Defendant’s Second Set be deemed admitted; and (3) Defendant be
awarded his costs and attorneys’ fees incurred in pursing the Second Motion to Compel
Discovery. (ECF No. 53.) In addition, the Magistrate Judge explicitly noted that
“[f]ailure to respond” to Defendant’s discovery requests by June 19 “may result in
34
sanctions including dismissal of the case.” (ECF No. 53 (emphasis in original).)
Plaintiff nevertheless did not comply with the court-ordered deadline, but instead
continued to flout the order and subsequent Court Orders.
In addition, the Court chose at that time to impose alternative sanctions against
Plaintiff rather than adopting the Magistrate Judge’s recommendation that this case be
dismissed with prejudice for Plaintiff’s failure to prosecute and comply with Court
Orders, the Federal Rules of Civil Procedure, and the Local Rules. In particular, the
Court: (1) reopened discovery for 120 days to permit Defendant to depose 13 witnesses
which he had not been able to depose previously; and (2) ordered Plaintiff to provide
Mr. Davis’s tax returns within 30 days. (ECF No. 80 at 10.) Regardless of these lesser
sanctions, Plaintiff has continued to ignore Court Orders, and has shown an utter
disregard for moving her case forward.
As a consequence, the Court finds that it would be futile to impose any lesser
sanction than dismissal on Plaintiff, who has repeatedly failed to advance this case and
comply with Court Orders even after being sanctioned on two different occasions. At
this juncture, the Court has no confidence that giving Plaintiff another chance, subject
to additional lesser sanctions, would finally secure Plaintiff’s full participation in this
case. Accordingly, the Court finds that this factor weighs in favor of dismissal.
In the final analysis, when weighing all of the Ehrenhaus factors, this case
presents the rare instance in which it is appropriate to dismiss Plaintiff’s claims entirely
and with prejudice, as a sanction for Plaintiff’s willful and persistent litigation
misconduct. Accordingly, the Court will dismiss Plaintiff’s Complaint (ECF No. 1) with
prejudice. As a result, Defendant’s Motion for Summary Judgment (ECF No. 95),
35
Defendant’s Motion to Vacate Deadlines (ECF No. 105), Plaintif f’s Motion to Expand
Time to Respond to Defendant’s Motion to Vacate the Final Pretrial Conference,
Request for Leave to Seek Substitute Counsel, and Request for Status Conference
(ECF No. 109), and Plaintiff’s Motion to Modify Scheduling Order and for an Extension
of Time to Respond to Defendant’s Motion for Summary Judgment (ECF No. 111) are
moot.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.
Plaintiff’s Complaint (ECF No. 1) and this action are DISMISSED W ITH
PREJUDICE;
2.
Defendant’s Motion for Summary Judgment (ECF No. 95) is DENIED AS MOOT;
3.
Defendant’s Motion to Vacate the Final Pretrial Conference and Deadline for
Submitting a Proposed Final Pretrial Order (ECF No. 105) is DENIED AS MOOT;
4.
Plaintiff’s Motion to Expand Time to Respond to Defendant’s Motion to Vacate
the Final Pretrial Conference, Request for Leave to Seek Substitute Counsel,
and Request for Status Conference (ECF No. 109) is DENIED AS MOOT;
5.
Plaintiff’s Motion to Modify Scheduling Order and for an Extension of Time to
Respond to Defendant’s Motion for Summary Judgment (ECF No. 111) is
DENIED AS MOOT;
6.
The Clerk of the Court shall enter judgment in favor of Defendant on all claims
and terminate this case; and
7.
Each party shall bear his or her own costs.
36
Dated this 15th day of April, 2019.
BY THE COURT:
_______________________
William J. Martínez
United States District Judge
37
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