Tolefree v. Amerigroup Kansas, Inc. et al
Filing
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MEMORANDUM AND ORDER granting 20 Motion to Dismiss or Compel Compliance with the Scheduling Order and Discovery. The case is dismissed for failure toprosecute. The Clerk of Court shall enter judgment for defendants and close the case. Signed by District Judge Carlos Murguia on 11/15/18. (hw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
RONNISHA D. TOLEFREE,
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Plaintiff,
v.
AMERIGROUP KANSAS, INC. et al.,
Defendants.
Case No. 18-2032-CM-TJJ
MEMORANDUM AND ORDER
Plaintiff Ronnisha D. Tolefree filed this civil rights action through counsel on January 21,
2018. Despite being on file for nearly ten months, the case has progressed little. It took several times
for the magistrate judge to successfully conduct a scheduling conference because of plaintiff’s repeated
failure to participate. After defense counsel and plaintiff’s counsel exchanged several emails about
extensions of time for deadlines, plaintiff’s counsel indicated that she had not heard from her client
recently. Plaintiff missed the extended deadline for providing discovery responses and a settlement
demand. After emailing plaintiff’s counsel and receiving no response, defendants filed a Motion to
Dismiss or Compel Compliance with the Scheduling Order and Discovery (Doc. 20). But plaintiff did
not timely respond to the motion. The court ordered plaintiff to show cause why the motion should not
be granted as uncontested, and plaintiff again did not respond. The court now considers the motion
without the benefit of a response by plaintiff.
Case History
The following timeline represents a brief summary of plaintiff’s participation in this case (or
lack thereof):
January 21, 2018: Plaintiff filed the instant case.
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April 12, 2018: The court entered an Initial Order Regarding Planning and Scheduling,
ordering the parties to confer on or before June 7, 2018 and to submit the parties’ planning
report by June 14, 2018.
June 14, 2018: The parties were supposed to confer on the planning report by phone, but
plaintiff’s counsel failed to appear for the scheduled call.
June 27, 2018: After several attempts to reach plaintiff’s counsel, defense counsel was
successful, and the parties were able to confer.
June 28, 2018: Plaintiff’s counsel did not appear for the initial scheduling conference. It
was reset for July 26, 2018. It appears that the court was unable to reach plaintiff’s counsel
for the rescheduled conference, so the conference was again rescheduled for August 9,
2018.
August 9, 2018: Plaintiff’s counsel indicated that she would be withdrawing and new
counsel would be entering an appearance. But she still agreed to the deadlines in the
Scheduling Order.
August 14, 2018: The court entered the Scheduling Order, ordering plaintiff to make a
settlement proposal by August 30. The parties were to mediate by October 5, and discovery
is to close December 7.
August 24, 2018: Plaintiff’s counsel emailed defense counsel, indicating she would need
an indefinite extension of time on discovery and the settlement offer. Defense counsel
asked how much time, but plaintiff did not respond. Defense counsel asked again on
September 11, and said that he would grant an extension until September 14.
September 13, 2018: Plaintiff’s counsel responded, indicating that she had not been able
to contact her client, and seeking an extension through September 28. Defense counsel
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agreed, but said it was the final extension and he would seek dismissal if plaintiff did not
meet the deadline.
September 28, 2018: The deadline passed without response by plaintiff.
October 1, 2018: Defense counsel emailed plaintiff’s counsel, saying “we are left with
nothing left to do [except] file a motion to have this case dismissed.” Plaintiff’s counsel did
not respond.
October 5, 2018: Defendants filed the instant motion. Plaintiff did not timely respond.
October 29, 2018: The court entered an order to show cause why the motion should not be
granted as unopposed. Again, plaintiff did not respond.
Application
Under Fed. R. Civ. P. 41(b) and D. Kan. R. 41.1, the court may dismiss an action if the plaintiff
fails to comply with a court order or the Federal Rules of Civil Procedure, or if the plaintiff fails to
prosecute her case. A Rule 41(b) dismissal is equivalent to an adjudication on the merits and is with
prejudice, meaning that the plaintiff cannot re-file her claims. Fed. R. Civ. P. 41(b). When evaluating
grounds for dismissal of an action, the court looks to the following factors:
(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) (internal citations omitted). The court
examines each of these factors below.
First, the court determines that defendants have been prejudiced by plaintiff’s lack of
participation. Defense counsel has engaged in numerous attempts to contact plaintiff and comply with
court orders. Plaintiff has not responded. Defendants have had plaintiff’s allegations pending in an
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open court case for nearly ten months, with no end in sight. Plaintiff, on the other hand, has shown
little interest in pursuing her claims or following court orders. While she has asked for a few
extensions of time, she has still failed to comply with the extended deadlines. And according to
plaintiff’s counsel, plaintiff has not been responsive to counsel’s attempts to reach her. Plaintiff’s
actions have resulted in unreasonable prejudice to defendants. This factor weighs in favor of
dismissal.
Second, plaintiff has unreasonably interfered with judicial process. The court has an interest in
making sure cases have forward progression. To effectively manage its caseload, the court requires
scheduling orders and needs to be able to contact the parties. The magistrate judge had to reschedule
the scheduling conference several times to implement a scheduling order so that plaintiff’s claims can
be heard. The undersigned judge had to enter an order to give plaintiff additional time to explain why
she had not responded to the motion to dismiss. Plaintiff has been nonresponsive and disrespectful of
the court’s—and defense counsel’s—time. This factor also weighs in favor of dismissal.
Third, the court finds plaintiff culpable for her conduct—at least to some degree. Plaintiff,
through counsel, has failed to participate for the better part of five months. This conduct cannot be
characterized as a one-time mistake. Rather, the pattern of behavior indicates a lack of interest in
prosecution and a lack of regard for defense counsel’s requests and the court’s orders. Plaintiff’s
counsel indicated in an email that she had tried to reach plaintiff but had not received communication
back from her. She needed plaintiff’s signature to transfer the case to another attorney, but was unable
to get plaintiff’s signature. This behavior demonstrates some level of culpability on the part of
plaintiff, and the third factor also weighs in favor of dismissal—although perhaps to a lesser degree
than others.
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Fourth, the court has warned plaintiff that her case might be subject to dismissal. Defense
counsel also gave plaintiff multiple opportunities to participate, and warned that he would have to file
a motion to dismiss if plaintiff did not begin participating. This factor supports dismissal.
Finally, the court is unaware of another sanction that would be effective. As evidenced by the
emails attached to defendants’ motion, defense counsel gave plaintiff ample opportunities to
participate. Plaintiff’s counsel indicated that plaintiff has not been in contact with her. And multiple
court conferences and orders have been ignored. The court has no reason to believe that plaintiff
would be reachable to collect a monetary sanction or that granting additional time to comply with
deadlines would be effective. Dismissal appears to be the most appropriate sanction under the
circumstances.
Plaintiff has failed to prosecute her case. She has ignored defense counsel and the court. And
these actions appear to be deliberate. Furthermore, the court has warned plaintiff that her actions
might result in dismissal, and the court doubts that another sanction would be effective. Based on
plaintiff’s behavior and its impact, the court determines that the case should be dismissed for lack of
prosecution.
IT IS THEREFORE ORDERED that defendants’ Motion to Dismiss or Compel Compliance
with the Scheduling Order and Discovery (Doc. 20) is granted. The case is dismissed for failure to
prosecute. The Clerk of Court shall enter judgment for defendants and close the case.
Dated this 15th day of November, 2018, at Kansas City, Kansas.
s/ Carlos Murguia_______________
CARLOS MURGUIA
United States District Judge
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