Butler v. Boeing Company, The et al

Filing 24

MEMORANDUM AND ORDER granting 9 Motion to Dismiss. Signed by District Judge Eric F. Melgren on 7/29/2014.Mailed to pro se party Henry Butler by regular mail. (smg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HENRY F. BUTLER,
Plaintiff,

vs.

Case No. 13-1043-EFM-KMH

THE BOEING COMPANY and
SPIRIT AEROSYSTEMS,
Defendants.

MEMORANDUM AND ORDER
This matter comes before the Court on Defendants’ Motion to Dismiss (Doc. 9).
Defendants The Boeing Company and Spirit Aerosystems seek dismissal of Plaintiff Henry
Butler’s age discrimination disparate treatment claim for Butler’s failure to comply with a court
order. The Court ordered Butler to file an amended complaint by February 25, 2013. Butler has
failed to do so. Therefore, the case is dismissed without prejudice.
I. Factual and Procedural Background
In January 2013, Magistrate Judge Karen M. Humphreys granted a motion to sever nine
individual claims of age discrimination disparate treatment from the Apsley v. Boeing class
action. The order directed the clerk to assign new docket numbers for nine individual lawsuits,
including a new docket number for Plaintiff Henry Butler. The magistrate ordered Butler and the
other eight severed plaintiffs to file amended complaints using their new case numbers by

February 25, 2013. The order indicated that a failure to file an amended complaint by the
deadline may result in dismissal. Five days before the deadline, Butler and another severed
plaintiff, Warren Pyles, filed identical motions to stay the case and for dismissal. In March 2013,
the Court ordered the other seven individual lawsuits dismissed without prejudice for failure to
file an amended complaint. In February 2014, the Court denied Butler’s motion to stay (Doc. 7).
Defendants then filed the Motion to Dismiss (Doc. 9) at issue here. In March 2014, Butler
filed a second motion to stay, which was granted in part to stay discovery pending resolution of
the Defendants’ Motion to Dismiss. Butler also filed a Motion for Reconsideration of the denial
of the first motion to stay, which the Court denied in March 2014.
II. Legal Standard
Under Federal Rule of Civil Procedure 41(b), if a plaintiff fails to comply with a court
order, a defendant may move to dismiss the action. Unless the dismissal order states otherwise,
such a dismissal operates as an adjudication on the merits.1
III. Analysis
There is no dispute that Butler has failed to file an amended complaint as ordered by the
Court. Therefore, the case must be dismissed. The remaining issue is whether to dismiss with or
without prejudice. Butler has resisted filing an amended complaint without counsel and has
requested a stay or dismissal without prejudice so that he can obtain counsel. Defendants
advocate dismissal with prejudice because of Butler’s refusal to file an amended complaint or
advance this litigation and their desire to end this litigation once and for all (Doc. 24).

1

FED. R. CIV. P. 41(b).

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Federal Rule of Civil Procedure 41 allows a defendant to move to dismiss the action “[i]f
the plaintiff fails to prosecute or to comply with these rules or a court order.”2 Unless the
dismissal order states otherwise, a dismissal under Rule 42(b) “operates as an adjudication on the
merits.”3 In other words, a dismissal for failure to comply with a court order is, by rule, generally
with prejudice unless the dismissal order states otherwise. Here, even a dismissal without
prejudice may operate as a dismissal with prejudice because the statute of limitations may have
run on Butler’s claim stemming from his employment in 2005.4 Because dismissal with or
without prejudice is a harsh remedy, the Court must consider 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.5

The Court finds that Defendants have suffered a degree of prejudice because Butler has
yet to file an amended complaint 17 months after the original deadline imposed by court order.
Claims by seven other similarly situated plaintiffs severed from the class action were dismissed
in March 2013. Defendants have expended time and resources responding to multiple motions to
stay and still lack the benefit of an amended complaint to be on notice of Butler’s allegations.
Butler’s failure to comply with a court order necessarily interferes with the effective
administration of justice. The Court understands Butler’s noncompliance is caused by a genuine
desire not to proceed without counsel in an individual action that was created by the Court rather
2

FED. R. CIV. P. 41(b).

3

FED. R. CIV. P. 41(b).

4

See Rodriguez v. Colorado, 521 Fed. Appx. 670, 671 (10th Cir. 2013) (“However, we treat a dismissal
without prejudice as a dismissal with prejudice when the statute of limitations has run on the claims.”).
5

See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162 (10th Cir. 2007).

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than as a result of his own initiative. As a result, the Court finds that Butler is less culpable than a
typical pro se plaintiff. But Butler still bears a degree of culpability for not following a court
order after more than a reasonable amount of time to obtain counsel. Further, the Court warned
Butler that dismissal of the action would be the likely sanction for noncompliance.6 Butler asks
for a lesser sanction, dismissal without prejudice, and a ruling to protect or preserve his claims.
Because of Butler’s lesser degree of culpability and the availability of a lesser sanction,
the Court dismisses this case without prejudice. This is consistent with the Court’s treatment of
seven similarly situated pro se plaintiffs who had their claims dismissed without prejudice. As
for the request to protect or preserve his claims, Butler has not cited any legal authority—nor is
the Court aware of any—for such a ruling. Additionally, whether the statute of limitations has
actually run is an issue for another time if Butler decides to refile his lawsuit.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 9) is
GRANTED without prejudice.
IT IS SO ORDERED.
Dated this 29th day of July, 2014.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

6

Apsley v. Boeing, No. 05-1368, Memorandum and Order, Doc. 459, at 2.

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