Breeden et al v. Ortiz et al
MEMORANDUM AND ORDER: Case is dismissed without prejudice under Fed. R. Civ. P. 41(b) and D. Kan. Rule 41.1 because of plaintiffs' failure to prosecute the case. Signed by District Judge Daniel D. Crabtree on 10/27/14. (msb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CARRIE BREEDEN, ET AL.,
Case No. 13-2227-DDC-KMH
ANTHONY ORTIZ, ET AL.,
MEMORANDUM AND ORDER
Plaintiffs filed their Complaint in this case on May 16, 2014 (Doc. 1). No summons was
issued at the time plaintiffs filed the Complaint, and the docket reflects that plaintiffs have not
served defendants with summons and the Complaint as required by Fed. R. Civ. P. 4(m).
On September 16, 2014, Judge Humphreys issued a Notice and Order to Show Cause
(Doc. 3) ordering plaintiffs to show cause in writing to the Court, on or before September 26,
2014, why the Court should not dismiss this case with prejudice for lack of prosecution under
Fed. R. Civ. P. 41(b). Because plaintiffs’ counsel have registered to participate in the Court’s
electronic filing system, they received service of Judge Humphreys’ Order by electronic notice
that same day. See D. Kan. Rule 5.4.9(a). Plaintiffs did not respond to the Court’s Order.
Under Fed. R. Civ. P. 41(b) and D. Kan. Rule 41.1, the Court may dismiss an action
where a party fails to prosecute or comply with the Court’s orders and rules. Unless the court
states otherwise, a Rule 41(b) dismissal is equivalent to an adjudication on the merits and is with
prejudice, meaning that a plaintiff cannot re-file his claims. Fed. R. Civ. P. 41(b); see also D.
Kan. Rule 41.1 (“The dismissal will be with prejudice unless the court otherwise specifies.”).
The Tenth Circuit has explained that “[a] district court undoubtedly has discretion to
sanction a party for failing to prosecute or defend a case, or for failing to comply with local or
federal procedural rules.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Such
sanctions may include dismissal of a party’s case with prejudice. Id. But “dismissal or other
final disposition of a party’s claim is a severe sanction reserved for the extreme case, and is only
appropriate where a lesser sanction would not serve the ends of justice.” Id. (citation and
internal quotation marks omitted). When evaluating whether dismissal with prejudice is an
appropriate sanction, the Court considers the following factors:
(1) the degree of actual prejudice to the [other party]; (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) (citations and internal quotation
marks omitted). The Tenth Circuit has held that “[a]lthough Ehrenhaus involved sanctions for
discovery violations . . . ‘Rule 41(b) involuntary dismissals should be determined by reference to
the Ehrenhaus criteria.’” Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir. 2002)
(quoting Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994)). “It is within a court’s
discretion to dismiss a case [with prejudice] if, after considering all the relevant factors, it
concludes that dismissal alone would satisfy the interests of justice.” Ehrenhaus, 965 F.2d at
918. The Court therefore applies these five factors here.
First, the Court finds that defendants have suffered little prejudice by plaintiffs’ failure to
prosecute this case. Plaintiffs have not even served defendants with the lawsuit, and therefore,
this case has not required any response or other action by defendants. While this factor shows
little prejudice to defendants, application of the other four factors weighs in favor of dismissing
Second, plaintiffs have interfered with the judicial process. “The court has an interest in
making sure cases have forward progression.” Johnson v. Hughes, No. 13-3023-CM, 2014 WL
1870613, at *2 (D. Kan. May 8, 2014). Plaintiffs filed this case on May 16, 2014, but failed to
serve defendants within 120 days as required by Fed. R. Civ. P. 4(m). Recognizing that
plaintiffs were not moving the case forward, Judge Humphreys requested plaintiffs to show
cause why the case should not be dismissed with prejudice for lack of prosecution. Plaintiffs
have not responded to Judge Humphreys’ Order in any fashion. This factor weighs in favor of
Third, plaintiffs are culpable for their conduct. Plaintiffs filed this lawsuit and, thus, are
responsible for serving defendants with summons and the Complaint. Plaintiffs failed to serve
defendants within the time required by Fed. R. Civ. P. 4(m). Plaintiffs also have failed to
respond to the Court’s Notice and Order to Show Cause. Plaintiffs’ counsel was served with this
Order by electronic notification. Yet, they did not respond to the Court’s specific directive to
show cause in writing, on or before September 26, 2014, why the Court should not dismiss this
case with prejudice for lack of prosecution under Fed. R. Civ. P. 41(b). This factor weighs
heavily in favor of dismissal.
Fourth, the Court has warned plaintiffs that dismissal of the action was a likely sanction
for noncompliance. Judge Humphrey’s Notice and Order to Show Cause advised plaintiffs that
the Court may dismiss the case with prejudice for lack of prosecution under Fed. R. Civ. P.
41(b). As noted above, plaintiffs’ counsel received a copy of this Order, but plaintiffs did not
respond. This factor also weighs in favor of dismissal.
Finally, the Court does not find that a lesser sanction is effective. Plaintiffs have failed to
move their case forward by serving the defendants with the summons and Complaint, and
plaintiffs have ignored the Court’s Notice and Order to Show Cause. Based on plaintiffs’
inaction, the Court is not convinced that a sanction lesser than dismissal would be effective.
Nevertheless, the Court, in its discretion, declines to dismiss the case with prejudice, although it
is authorized to do so under Fed. R. Civ. P. 41(b) and D. Kan. Rule 41.1. Plaintiffs’ counsel’s
inattention to this case and their blatant indifference for Judge Humphreys’ Notice and Order to
Show Cause concern the Court. But the Court does not wish to punish plaintiffs by barring their
claims when the failure to prosecute this case results from their counsel’s neglect. Therefore, the
Court dismisses this case, but without prejudice, pursuant to Fed. R. Civ. P. 41(b) and D. Kan.
IT IS THEREFORE ORDERED that this case is dismissed without prejudice under
Fed. R. Civ. P. 41(b) and D. Kan. Rule 41.1 because of plaintiffs’ failure to prosecute the case.
Dated this 27th day of October, 2014, at Topeka, Kansas.
s/ Daniel D. Crabtree ____
Daniel D. Crabtree
United States District Judge
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