Kalkhorst v. Medtronic, Inc.

Filing 31

ORDER DISMISSING CASE with prejudice pursuant to Fed. R. Civ. P. 41(b), by Magistrate Judge Kristen L. Mix on 12/19/2018. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00580-KLM
RONALD WILLIAM KALKHORST,
Plaintiff,
v.
MEDTRONIC, INC.,
Defendant.
_____________________________________________________________________
ORDER
________________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court sua sponte. On July 26, 2018, the Court set a
Scheduling Conference for September 7, 2018, at 3:00 p.m. See Order [#21].1 On
September 6, 2018, the Court entered a Minute Order [#24] stating:
This case is set for a Scheduling Conference on September 7, 2018.
Pursuant to the Local Rules of the United States District Court for the District
of Colorado and Court Order [#21], Plaintiff was obligated to prepare a
proposed Scheduling Order, to review and revise it with Defendant, and to
tender it to the Court on or before August 31, 2018. See D.C.COLO.LCivR
16.1. The proposed Scheduling Order was not filed by the deadline.
Accordingly, IT IS HEREBY ORDERED that the Scheduling Conference set
for September 7, 2018, at 3:00 p.m. is VACATED and RESET for October
31, 2018, at 9:30 a.m. in Courtroom A-401, Fourth Floor, Alfred A. Arraj
United States Courthouse, 901 19th Street, Denver, Colorado. IT IS
FURTHER ORDERED that Plaintiff shall make an appointment with the
Colorado Federal Pro Se Clinic by calling 303-380-8786 about drafting and
submitting a proposed scheduling order under Local Rule 16.1. The deadline
for submission of the proposed scheduling order is October 17, 2018. In the
event that Plaintiff does not comply with this deadline, Defendant shall submit

1

“[#21]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s electronic case filing and management system
(CM/ECF). This convention is used throughout this Order.

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its version of a proposed scheduling order no later than October 24, 2018.
Plaintiff is hereby warned that failure to follow future Court orders may be
construed as a failure to prosecute and result in dismissal of the case.
Plaintiff did not file a proposed scheduling order by October 17, 2018, and therefore
Defendant submitted its version of a Proposed Scheduling Order [#25] on October 24,
2018. In its Proposed Scheduling Order, Defendant noted that it “previously corresponded
with Plaintiff on August 14, 2018, regarding a conference under Federal Rule of Civil
Procedure 26(f) and the submission of a joint proposed scheduling order. But, to date,
Plaintiff has not contacted Defendant’s counsel in response.” See [#25] at 1 n.1.
The day before the reset Scheduling Conference, on October 30, 2018, Plaintiff
mailed a copy of a draft Scheduling Order to the Court via United States Postal Service.
See Notice of Scheduling Order [#29]; Envelope [#29-2] at 1. That night, at 9:59 p.m.,
Defendant’s counsel received via e-mail the draft Scheduling Order from Plaintiff. See
Def.’s Ex. A [#30-1] at 1. Plaintiff’s draft Scheduling Order essentially rewrote Defendant’s
portion of the Statement of Claims and Defenses to oppose almost all of Defendant’s
statements. See [#29] at 3-9. Subsequent sections of the document were erased except
for the November 14, 2018 deadline for joinder of parties and amendment of pleadings and
the statement regarding amendments to the scheduling order, i.e., that the order may be
altered and amended only on a showing of good cause. See id. at 9. Plaintiff also
responded to Defendant’s footnote about conferral by stating: “Plaintiff has been detained
due to Grandson Health issues from May 2018-Oct 2018. Grandson’s health is still being
evaluated by his primary care physician.” See id. at 1 n.1. No further information was
provided.
At the Scheduling Conference on October 31, Defendant’s counsel provided the
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Court with a copy of Plaintiff’s draft Scheduling Order that had been e-mailed to him late
the previous evening. See Courtroom Minutes [#26] at 1; Def.’s Ex. A [#30-1] at 1. Plaintiff
failed to appear at the Scheduling Conference, despite clearly being on notice about the
time and date of the hearing. See [#24]; [#25] at 1; [#29] at 1.
The Court entered Defendant’s version of the Proposed Scheduling Order, with
interlineations, as an order of the Court. See Scheduling Order [#27]. In relevant part, the
Court stated on the first page of the Scheduling Order [#27]: “NOTE TO PLAINTIFF: Failure
to comply with any deadline set forth in this Order shall result in dismissal of your case.”
Plaintiff was ordered to file a supplement to Section 3.a. of the Scheduling Order no later
than November 6, 2018, setting forth the facts underlying his claims. Plaintiff was further
ordered to file a supplement to Section 5 of the Scheduling Order no later than November
6, 2018, setting forth his alleged damages by category and amount. The parties were
ordered to exchange Rule 26(a)(1) initial disclosures pursuant to Section 6.c. of the
Scheduling Order no later than November 14, 2018. Plaintiff was ordered to file a
supplement to Section 9.d.1. of the Scheduling Order no later than November 6, 2018,
setting forth any fields of expert testimony he intends to present. Finally, Plaintiff was
ordered to file a supplement to Section 9.e. of the Scheduling Order no later than
November 6, 2018, listing those witnesses he intends to depose. The Courtroom Minutes
[#26] reiterated the deadlines with which Plaintiff was required to comply and the notice
regarding the consequences if Plaintiff should fail to comply with those deadlines.
On November 1, 2018, the Clerk of Court received the mailed copy of Plaintiff’s draft
Scheduling Order, with which Plaintiff also included a copy of his Charge of Discrimination.
See [#29, #29-1]. On November 5, 2018, at 3:06 p.m., Plaintiff left a voicemail for
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Defendant’s counsel, regarding his case. See Def.’s Ex. A [#30-1] at 1. Although the
precise contents of that message are not known to the Court, Defendant’s counsel
responded by e-mail about thirty minutes later, stating in part: “Unfortunately, we cannot
advise you regarding your obligations pursuant to the Court’s October 31, 2018 Courtroom
Minutes [ECF No. 26] and the Court’s accompanying October 31, 2018 Scheduling Order
[ECF No. 27], which I have attached here as a courtesy.” Id. On November 19, 2018,
Defendant filed a Notice of Plaintiff’s Continued Failure to Comply With the Orders of This
Court [#30], in which it notified the Court that Plaintiff also missed the November 14, 2018
deadline to exchange initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1). Plaintiff did
not file any type of response to Defendant’s Notice, although the Court has waited more
than twenty-one days before issuing this present Order so as to give Plaintiff the
opportunity to do so.
Despite the Court’s clear warning about the consequences for failing to comply with
the deadlines set forth in the Scheduling Order, Plaintiff has filed nothing, including a
request for an extension of time or a request for clarification, since the Court received his
draft Scheduling Order in the mail on November 1, 2018. Plaintiff’s conduct to date
demonstrates a lack of interest in prosecuting this case as well as a failure to comply with
multiple Court orders. The Court therefore considers whether Plaintiff’s case should be
dismissed as a sanction pursuant to Fed. R. Civ. P. 41(b). See Rogers v. Andrus Transp.
Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (noting that Court has inherent authority to
consider sua sponte whether a case should be involuntarily dismissed due to the plaintiff’s
failure to prosecute); 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2369, at 576-77 & n.1 (3d ed. 2008). Because Plaintiff is proceeding pro se,
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the Court has given Plaintiff several opportunities to prosecute his case. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court is not Plaintiff’s advocate and must nevertheless recommend
dismissal if circumstances warrant that outcome. See Hall, 935 F.3d at 1110.
I. Analysis
In Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), the Tenth Circuit
enumerated the factors to be considered when evaluating grounds for dismissal of an
action.2

The factors are: “(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.” Id. at 921 (internal
quotations and citations omitted); see also Gates Rubber Co. v. Bando Chems. Indus., 167
F.R.D. 90, 101 (D. Colo. 1996). “[D]ismissal 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). Given that Plaintiff is proceeding pro se, the Court
must carefully conduct its analysis and consider whether “some sanction other than
dismissal [with prejudice is appropriate], so that the party does not unknowingly lose [his]
right of access to the courts . . . .” Nasious v. Two Unknown BICE Agents, 492 F.3d 1158,
1163 (10th Cir. 2007) (quoting Ehrenhaus, 965 F.2d at 920 n.3).

2

The Court notes that the standards for dismissal pursuant to Rule 37 and Rule 41(b) are
essentially the same. Mobley v. McCormick, 40 F.3d 337, 340-41 (10th Cir. 1994) (“[W]e see no
principled distinction between sanctions imposed for discovery violations and sanctions imposed
[pursuant to Rule 41(b), and] . . . involuntary dismissals should be determined by reference to the
Ehrenhaus criteria.”).

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A.

Prejudice to Defendant
From a review of the case file, the Court finds that Plaintiff’s neglect of his case has

prejudiced Defendant. Defendant has defended this lawsuit in good faith, attended the
Scheduling Conference, and prepared Court documents. Moreover, Plaintiff’s failure to
materially participate in creation of the Scheduling Order and to exchange initial discovery
has prejudiced Defendant’s ability to defend against the allegations made by Plaintiff in his
Amended Complaint [#8]. Allowing the case to proceed when Plaintiff has failed to comply
with his obligations would require Defendant to expend further unnecessary time and
expense to defend against a case which Plaintiff appears to have little interest in
prosecuting on his own. This factor weighs in favor of dismissal.
B.

Interference with the Judicial Process
The Court concludes that Plaintiff’s failure to prosecute his case, and specifically his

failure to comply with Court Orders, necessarily interferes with the effective administration
of justice. The issue here “is respect for the judicial process and the law.” See Cosby v.
Meadors, 351 F.3d 1324, 1326-27 (10th Cir. 2003). Plaintiff’s failure to put himself in a
position to comply with Court Orders evidences lack of respect for the Court and the judicial
process.

In particular, Plaintiff’s neglect has caused the undersigned and her staff to

expend unnecessary time and effort. The Court’s frequent review of the case file, holding
a Scheduling Conference which Plaintiff failed to attend and for which he failed to
adequately prepare, and issuance of this Order increase the workload of the Court and take
its attention away from other matters where the parties have fulfilled their obligations and
are deserving of prompt resolution of their issues.

“This order is a perfect example,

demonstrating the substantial time and expense required to perform the legal research,
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analysis, and writing to craft this document.” Lynn v. Roberts, No. 01-cv-3422-MLB, 2006
WL 2850273, at *7 (D. Kan. Oct. 4, 2006). This factor weighs in favor of dismissal.
C.

Culpability of Plaintiff
Plaintiff has ignored his case responsibilities and failed to move his case forward.

Although the Court is sympathetic to the fact that Plaintiff’s grandson has health issues,
Plaintiff has provided no detail whatsoever regarding why his grandson’s health issues
have impacted Plaintiff’s litigation of this case to such a profound degree. The Court
provided Plaintiff with ample opportunities to litigate his case, but he has chosen not to
participate except in an unacceptably minimal amount. As a voluntary pro se litigant, it is
solely Plaintiff’s responsibility to ensure that he complies with case deadlines, Court Orders
and applicable rules. See, e.g., Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).
Considering the history of this case, the Court must conclude that Plaintiff’s failures have
been willful, and that he is therefore responsible for his own noncompliance. This factor
weighs in favor of dismissal.
D.

Advance Notice of Sanction of Dismissal
Plaintiff was warned by the Court on at least six occasions that he risked dismissal

of his case if he failed to move the case forward or to comply with Court Orders.
First, Plaintiff was warned three times at the outset of the case what he must
generally do to avoid dismissal of his case. He was notified in the July 26, 2018 Order
Setting Scheduling/Planning Conference and Advisement to Pro Se Plaintiffs that “[t]he
plaintiff, who is proceeding pro se, shall take particular notice of these instructions
as any failure to comply may result in the imposition of sanctions and/or dismissal
of his case. See [#21] at 1 (emphasis in original). Plaintiff was later warned in the same
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order: “Failure to appear at a court-ordered conference or to comply with a
court-ordered deadline which has not been vacated by court order, including
deadline to prepare and submit a proposed scheduling order, may result in the
imposition of sanctions under Fed. R. Civ. P. 16(f), including the payment of the
opposing parties’ expenses in attending the scheduling conference, and/or dismissal
of the case.” See id. at 3 (emphasis in original). In the Court’s letter to pro se litigants
issued along with the Order Setting Scheduling/Planning Conference [#21], Plaintiff was
told once more that: “Even though you don’t have a lawyer representing you, you are
required to participate in the ordinary events associated with being a party to a lawsuit, like
discovery, court hearings, and trial. If you fail to do so, the Judge may impose monetary
and non-monetary sanctions on you, up to and including either dismissal of your case (if
you are the plaintiff) . . . .” See [#21-3] at 2.
Second, when Plaintiff failed to participate in the creation of a proposed Scheduling
Order, thereby causing the Court to reset the Scheduling Conference, he was told: “Plaintiff
is hereby warned that failure to follow future Court orders may be construed as a failure to
prosecute and result in dismissal of the case.” Minute Order [#24].
Third, in both the Scheduling Order [#27] and Courtroom Minutes [#26] from the
Scheduling Conference, Plaintiff was warned again that failure to comply with the deadlines
set forth by the Court would result in dismissal of his case.
Pro se litigants are required to read and follow the rules of the Court. Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). Accordingly, it should be no surprise to Plaintiff
that his failure to prosecute this case could result in the sanction of dismissal. Although this
factor cannot be said to weigh in favor of or against dismissal, where other factors support
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dismissal, the Court’s efforts to advise Plaintiff of the potential for dismissal in this case do
not prevent this result.
E.

Efficacy of a Lesser Sanction
Finally, the Court concludes that no sanction less than dismissal would be effective.

Although Plaintiff is proceeding pro se, that does not excuse his neglect here. See Green,
969 F.2d at 917. In addition, given the magnitude of Plaintiff’s neglect, the Court doubts
that a monetary or evidentiary sanction would be practical or effective, nor would such a
sanction bear a substantial relationship to Plaintiff’s misconduct. Considering the history
of the case, it is apparent that Plaintiff is no longer interested in and/or capable of
prosecuting his claims. Under these circumstances, no lesser sanction is warranted and
dismissal is the appropriate result.
II. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that Plaintiff’s case is DISMISSED with prejudice
pursuant to Fed. R. Civ. P. 41(b).
IT IS FURTHER ORDERED that the Clerk of Court shall close this case.

Dated: December 19, 2018

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