Pralle v. Dollar General Corporation

Filing 23

MEMORANDUM AND ORDER granting defendant Dollar General's 19 Motion to Dismiss the defendant Dollar General's insofar as the plaintiff's complaint is dismissed without prejudice for failure to prosecute. Signed by U.S. District Senior Judge Sam A. Crow on 7/26/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JANET PRALLE,
Plaintiff
vs.

Case No. 16-4057-SAC

DOLLAR GENERAL CORPORATION,
Defendant.
MEMORANDUM AND ORDER
The case comes before the court on the Fed. R. Civ. P. 41(b)
motion to dismiss filed by the defendant Dolgencorp, LLC (“Dollar General”).
ECF# 19. This motion was electronically filed on June 30, 2017, with copies
sent to the plaintiff Janet Pralle via email, regular postal mail, and certified
mail. ECF# 19, p. 3. On July 3, 2017, the court electronically filed a minute
order directing the plaintiff to respond to the defendant’s motion no later
than July 21, 2017. ECF# 22. A copy of this minute order was also mailed to
Janet Pralle by regular mail. Id. As of this order, the plaintiff Janet Pralle has
filed no response to the defendant’s motion to dismiss.
The procedural background to this case is as follows. The court
granted on August 19, 2016, the defendant Dollar General’s motion to
compel arbitration and stay proceedings. ECF# 14. The court’s order
compelled the parties to arbitrate pursuant to the terms of DG’s Arbitration
Agreement which the plaintiff electronically signed on August 13, 2014. Id.

The order directed the parties to “file a status report by January 20, 2017,
concerning the status of arbitration in the event that the case has not been
terminated earlier.” Id. at p. 6. The court warned the parties that, “[f]ailure
to report to this court will lead to dismissal of this case for lack of
prosecution.” Id.
On January 20, 2017, both parties filed separate status reports.
DG reported that the plaintiff had yet to initiate the arbitration against Dollar
General. ECF# 15. In her status report, Ms. Pralle recounted her confusion
regarding communications and her responsibility for initiating the arbitration,
as well as, her difficulties with technology. Ms. Pralle represented that she
now had a copy of the Arbitration Agreement and asked the court not to
dismiss her case for lack of prosecution.
On January 27, 2017, the court filed its order in response to the
parties’ status reports. ECF# 17. The court pointed out that its prior order
plainly directed arbitration to be conducted pursuant to the terms of the
Arbitration Agreement and that this Agreement was already part of the
court’s record as an attached exhibit. ECF# 17, p. 2. The court further
highlighted that the Arbitration Agreement spells out the claimant’s
responsibility for filing a demand or a notice of intent to arbitrate to begin
the arbitration process. Id. at p. 3. The court’s order concluded:
The court accepts the parties’ status reports and also directs the
parties to submit status reports by June 30, 2017. At that time, the
court will consider dismissal without prejudice for failure to comply
with a court order should the plaintiff have failed to comply with this
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court’s order requiring arbitration pursuant to the terms of the
Arbitration Agreement.
Id.
On June 30, 2017, Dollar General filed both its status report
(ECF# 18) and its pending motion to dismiss (ECF# 19). Also on June 30,
2017, Ms. Pralle filed her status report. ECF# 21. Dollar General reports that
Ms. Pralle has not initiated the arbitration proceeding and has not made any
contact with the defendant’s counsel since the last status report in January
of 2017. Ms. Pralle responds that prior to May she contacted the American
Arbitration Association several times asking questions about the filing of
forms. She also mentions her struggles with PTSD. Apparently, Ms. Pralle in
May began conversations with several different attorneys about representing
her, but eventually none of them chose to represent her. So, Ms. Pralle
resumed her phone calls to the American Arbitration Association and went to
small public libraries to use their computers. She complains that she has left
phone messages with American Arbitration Association which have not been
returned and that the forms she received from them were blank when
downloaded. She concludes her status report that she is still waiting for a
return call from the American Arbitration Association.
Ms. Pralle has filed no response to the defendant’s motion to
dismiss for lack of prosecution pursuant to Rule 41(b). The court reminded
Ms. Pralle by minute order that her response to this motion was due no later
July 21, 2017. By the terms of D. Kan. Rule 7.4(b), Ms. Pralle has waived
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her right to file a responsive brief, and without further notice, the court may
consider and decide the defendant’s motion as uncontested.
After more than 11 months, two status reports, and two court
orders directing the plaintiff to comply with the terms of the arbitration
agreement, Ms. Pralle still has not initiated the arbitration proceedings. Her
latest explanation is again to blame others for what is simply her failure to
fulfill her responsibility to initiate the arbitration proceeding. In having filed
with the EEOC her charges and with this court her complaint, her motion for
leave to proceed in forma pauperis, and her status reports, Ms. Pralle has
demonstrated the ability to follow basic procedural instructions and to
complete accompanying forms. It may be that Ms. Pralle is frustrated by
having to arbitrate her claims according to the terms of the arbitration
agreement. This, however, does not justify her delay and repeated failure to
follow this court’s orders.
By the terms of Fed. R. Civ. P. 41(b), “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.” Both by the defendant’s
motion and by the court’s prior order, Ms. Pralle has been amply warned of
the consequences in not starting the arbitration proceeding. The court in the
exercise of its discretion has reviewed the different factors relevant in
deciding whether to dismiss with or without prejudice. Olsen v. Mapes, 333
F.3d 1199, 1204 (10th Cir. 2003) (citing factors in Ehrenhaus v. Reynolds,
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965 F.2d 916, 921 (10th Cir. 1992)). Shortly after this case was filed, the
court stayed it on the defendant’s motion and avoided the waste of
additional litigation fees and expenses. Because the defendant’s filings show
the plaintiff’s claims face serious legal hurdles, the defendant is not in a
position to assert a significant degree of actual prejudice from the plaintiff’s
delay. Her pro se status and her lack of a computer at home are relevant to
the plaintiff’s culpability, but they do not excuse her extended delay in
initiating the arbitration. The court’s warning to date has been limited to
dismissal without prejudice, and this sanction seems warranted and
efficacious here.
IT IS THEREFORE ORDERED that the defendant Dollar General’s
motion to dismiss (ECF# 19) is granted insofar as the plaintiff’s complaint is
dismissed without prejudice for failure to prosecute.
Dated this 26th day of July, 2017, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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