John Doe K v. Larsen et al

Filing 34

ORDER DISMISSING CASE. IT IS ORDERED THAT:1.This action is DISMISSED WITHOUT PREJUDICE.LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion). Signed by Judge Joan N. Ericksen on January 6, 2012. (slf)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
John Doe K, by and through his guardians,
John Doe KT and Jane Doe LT,
Plaintiff,
v.

Civil No. 10-2152 (JNE/SER)
ORDER

Gregg Alan Larsen and Downloaders 1-100,
Defendants.
In November 2011, the Court ordered John Doe K to show cause why this action should
not be dismissed for failure to prosecute. His response sought a 6-month delay. For the reasons
set forth below, the Court dismisses this action without prejudice for failure to prosecute.
John Doe K commenced this action in May 2010. The next month, he served the
Summons and the Complaint on Gregg Alan Larsen. In an Order dated October 8, 2010, the
magistrate judge noted that more than 120 days had elapsed since the action’s commencement
and that Larsen had not appeared.1 The magistrate judge directed counsel for John Doe K to
“[n]otify defense counsel immediately that he/she is required to make an appearance or move for
an extension of time to do so,” to “[f]ile an application for entry of default unless the required
pleading is filed within 10 days,” or to “[a]dvise the Court in writing of any good cause to the
contrary.” The magistrate judge stated that failure to comply with the Order within twenty days
would result in the action’s dismissal for lack of prosecution. Ten days later, John Doe K filed
an Application for Default Judgment under Rule 55(b)(2) of the Federal Rules of Civil
Procedure. In his application, John Doe K requested “that default judgment be entered in [his]
favor” and “that the Court hold a hearing to determine the amount of damages in this matter.”
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Larsen is serving a 25-year prison sentence. Judgment in a Criminal Case, United States
v. Larsen, Criminal No. 10-137 (JNE/SRN) (D. Minn. Nov. 30, 2010), ECF No. 33.
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Construing John Doe K’s application as one for entry of Larsen’s default, the Clerk of Court
entered it on October 19, 2010. See Fed. R. Civ. P. 55(a).
In an Order dated April 13, 2011, almost six months after entry of Larsen’s default, the
magistrate judge noted that John Doe K had not “filed a separate motion for entry of default
judgment that complies with Fed. R. Civ. P. 55(b).” The magistrate judge ordered John Doe K to
file a motion for entry of default judgment within thirty days and to contact the undersigned’s
chambers for a hearing date. If John Doe K failed to comply, the magistrate judge stated that a
recommendation to dismiss the action for lack of prosecution would issue.
In early May 2011, John Doe K filed an Application for Default Judgment and Motion
for an Evidentiary Hearing to Determine Damages. It was scheduled to be heard on July 14,
2011. In support, John Doe K filed a short memorandum that discussed Larsen’s failure to
respond to the Complaint. It did not contain a substantive discussion of his claims or requested
relief. Two days before the July 14 hearing, the Court cancelled the hearing; ordered John Doe
K to contact the undersigned’s chambers to schedule an evidentiary hearing; and ordered him to
submit proposed findings of fact and conclusions of law, as well as a supplemental memorandum
of law, in support of his position on damages before the evidentiary hearing.
More than four months passed, and John Doe K did not schedule an evidentiary hearing.
Accordingly, on November 16, 2011, the Court ordered John Doe K to show cause why this
action should not be dismissed for failure to prosecute. He responded by submitting a 4-page
memorandum and a 3-page affidavit.
The memorandum states that “[c]ounsel for [John Doe K] did not reschedule the hearing
on Plaintiff’s Motion for Default because he believed, given the vulnerability of this particular
minor Plaintiff, that it would be beneficial to the minor Plaintiff if additional time passed before

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presenting damages to this Court.” The memorandum continued by describing John Doe K’s
vulnerabilities. It also noted that this case is one of three similar cases against Larsen. Counsel
for John Doe K represents the plaintiffs in the other two actions, and the three cases are assigned
to the same district and magistrate judges. Asserting that “there is little guidance on damages in
civil cases involving victims of child pornography” under the applicable statute, “counsel for
[John Doe K] believed it wise to conduct a damages hearing . . . involving one of the older and
less vulnerable plaintiffs before conducting the damages hearing in the current matter.”2
According to John Doe K’s memorandum, “[c]ounsel can now use the information from the
[other] case to present damages evidence to the Court in this matter when the damages hearing is
ultimately conducted.” As to when the evidentiary hearing might take place, the memorandum
states:
Counsel for Plaintiff requests that this Court allow this case to remain
pending for 6 months. At that time, counsel will contact the Court’s calendar
clerk and schedule a hearing on Plaintiff[’s] Motion for Default and also present
evidence of damages at that hearing or dismiss this case without prejudice and refile the case when the minor Plaintiff is able to better participate in the case.
The memorandum closes by requesting more time for John Doe K “to prepare his damages”:
Counsel for the minor Plaintiff needs additional time so that the minor Plaintiff
can participate in mental health treatment and be in the position to be evaluated by
an expert psychologist who can then testify before this Court on the issue of the
damage Defendant caused to minor Plaintiff when he produced, downloaded and
distributed child pornography of the minor Plaintiff. In addition, minor Plaintiff
may also be in the position to testify before this Court on those same issues.
Consequently, minor Plaintiff, through counsel, requests that this Court
not dismiss this lawsuit for failure to prosecute and allow minor Plaintiff
additional time to prepare his damages in this case.
The affidavit, submitted by John Doe K’s counsel, essentially restates the memorandum.
It summarizes the action’s procedural history, asserts that “[c]ounsel did not reschedule [the July

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In November 2011, an evidentiary hearing took place in one of the other cases.
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14] hearing because the damages in this case are complex and the minor Plaintiff has not been in
the position to participate in the damage assessment required,” discusses John Doe K’s
vulnerabilities, and explains why counsel “decided to schedule and conduct a damages hearing”
in one of the other two cases against Larsen.
A district court may, in its discretion, dismiss an action for failure to prosecute. Link v.
Wabash R.R. Co., 370 U.S. 626, 629-33 (1962); Smith v. Gold Dust Casino, 526 F.3d 402, 404
(8th Cir. 2008); Sterling v. United States, 985 F.2d 411, 412 (8th Cir. 1993) (per curiam); see
Fed. R. Civ. P. 41(b). “[D]ismissal with prejudice is an extreme sanction that should be used
only in cases of willful disobedience of a court order or where a litigant exhibits a pattern of
intentional delay.” Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000). “A plaintiff
need not have acted in bad faith, but the district court must find that the plaintiff ‘acted
intentionally as opposed to accidentally or involuntarily.’” Arnold v. ADT Sec. Servs., Inc., 627
F.3d 716, 722 (8th Cir. 2010) (quoting Hunt, 203 F.3d at 527). “Even where the facts might
support dismissal with prejudice, this ‘ultimate sanction . . . should only be used when lesser
sanctions prove futile.’” Hunt, 203 F.3d at 527 (alteration in original) (quoting Rodgers v.
Curators of Univ. of Mo., 135 F.3d 1216, 1222 (8th Cir. 1998)). “A district court should weigh
its need to advance its burdened docket against the consequence of irrevocably extinguishing the
litigant’s claim and consider whether a less severe sanction could remedy the effect of the
litigant’s transgressions on the court and the resulting prejudice to the opposing party.” Hunt,
203 F.3d at 527; see Mann v. Lewis, 108 F.3d 145, 147 (8th Cir. 1997). “[T]he sanction imposed
. . . must be proportionate to the litigant’s transgression.” Rodgers, 135 F.3d at 1219.
Delay and an admonition that he faced a dismissal for failure to prosecute have preceded
almost every filing that John Doe K has made in this case. From the service of the Summons and

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the Complaint on Larsen to John Doe K’s October 2010 Application for Default Judgment, more
than four months passed. John Doe K filed his Application for Default Judgment only after the
magistrate judge admonished him that he faced a dismissal for failure to prosecute unless he took
action to advance this litigation. From the entry of Larsen’s default to John Doe K’s May 2011
Application for Default Judgment and Motion for an Evidentiary Hearing to Determine
Damages, more than six months passed. John Doe K filed it only after the magistrate judge
admonished him that he faced a dismissal for failure to prosecute unless he filed a motion for
entry of default judgment. John Doe K’s May 2011 application and motion briefly discussed
Larsen’s default. It did not contain a substantive discussion of his claims or requested relief. In
July 2011, the Court cancelled the hearing of his May 2011 application and motion, ordered John
Doe K to schedule an evidentiary hearing, and ordered him to submit proposed findings of fact
and conclusions of law, as well as a supplemental memorandum of law, in support of his position
on damages before the evidentiary hearing. More than four months passed. John Doe K did
nothing. Accordingly, in November 2011, the Court ordered him to show cause why this action
should not be dismissed for failure to prosecute. John Doe K’s response reveals that his attorney
decided his litigation strategy was better served by disregarding the Order to schedule an
evidentiary hearing in this case (Pl.’s Att’y Aff. ¶ 9, Nov. 22, 2011, ECF No. 21); that John Doe
K’s attorney is not prepared for an evidentiary hearing; that John Doe K himself is not
prepared—almost two years after bringing it—to participate in this action; and that John Doe K
might be prepared to participate in this action in six months.
John Doe K’s response plainly fails to show cause why this action should not be
dismissed for failure to prosecute. Throughout this litigation, John Doe K has failed to
expeditiously prosecute it. Instead, he pursues it when admonished that he faces a dismissal for

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failure to prosecute. After the Court specifically ordered him to schedule an evidentiary hearing,
he did nothing. His response to the order to show cause is a plea for still more delay and an
admission that he is not prepared to present evidence of his damages or to participate in this case.
The Court does not belittle the harm inflicted on John Doe K by Larsen, but the Court can no
longer devote scarce judicial resources to an action whose plaintiff makes little to no independent
effort to prosecute it. The Court dismisses this action for failure to prosecute.
As to whether the dismissal should be with or without prejudice, the record reveals that
John Doe K has exhibited a pattern of intentional delay such that a dismissal with prejudice
could be appropriate. Nevertheless, the Court dismisses the action without prejudice. A
dismissal without prejudice remedies John Doe K’s failure to prosecute this action without
forever extinguishing his right to pursue an action against Larsen if and when his vulnerabilities
allow. Having defaulted, Larsen cannot claim significant prejudice. The Court dismisses this
action without prejudice for failure to prosecute. Cf. Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir.
1984) (“A relatively brief period of delay is sufficient to justify the district court’s sending a
litigant to the back of the line.”).
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

This action is DISMISSED WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: January 6, 2012
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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