Rivers v. Younger et al

Filing 52

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION as to 48 , 49 , and 50 by Magistrate Judge William P. Lynch. Objections to PFRD due by 7/13/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (ph)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JOSEPH SAMON RIVERS,
Plaintiff,
v.

16cv555 KG/WPL

EMILY YOUNGER and KRQE-TV NEWS 13,
Defendants.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Pro se Plaintiff Joseph Rivers filed a complaint alleging defamation stemming from a
television broadcast during which Emily Younger, a reporter, discussed a civil forfeiture lawsuit
pending against him. (See Doc. 1; see also Doc. 32 at 4.) After some motions practice,
Defendants served Rivers with a Notice of Deposition Duces Tecum. (Doc. 44-1.) Rivers
appeared for the deposition but refused to answer questions without an attorney. (Doc. 46-1 at 4
(“I object to answering any questions without an attorney present”).) Defendants then filed an
Amended Motion to Compel Plaintiff’s Depositions and For Discovery Sanctions seeking “for
Plaintiff to pay all attorney fees and costs associated with the deposition cancellation, including
this motion . . . . ” (Doc. 44.) Rivers did not respond to the motion. As this was unfolding, Rivers
also failed to call in to a telephonic status conference intended to check on the progress of
discovery. (Doc. 35 (order setting status conference); Doc. 47 (clerk’s minutes noting that Rivers
did not call in).)
I then entered two orders to show cause. The first was so that Rivers could explain why
he failed to call in to the telephonic status conference. (Doc. 48.) The second was so that Rivers

could explain why he should not be required to pay Defendants’ reasonable expenses, including
attorney’s fees, for bringing their motion to compel. (Doc. 49.) Both orders warned that failure to
respond would result in a recommendation to Judge Gonzales that the case be dismissed with
prejudice. (Doc. 48 at 1; Doc. 49 at 2.)
After Rivers failed to respond to both orders to show cause, I entered a third. (Doc. 50.)
It required Rivers to appear in-person to address the two previous orders to show cause. (Id.)
He did not appear. (Doc. 51.)
Federal Rule of Civil Procedure 41(b) states that “[i]f the plaintiff fails . . . to comply
with . . . a court order, a defendant may move to dismiss the action or any claim against it.”
The Tenth Circuit has held that a district court may dismiss a case sua sponte pursuant to Rule
41(b). Hawkinson v. Montoya, 283 F. App’x 659, 662 n.2 (10th Cir. 2008) (unpublished) (citing
Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007)). Before dismissing a
case sua sponte, a court must consider several factors, including: “(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).
Reviewing the five factors in Ehrenhaus reveals that this case should be dismissed with
prejudice. Under factor one, the Defendants are prejudiced because Rivers’s inaction has
prevented them from defending the case. Under factor two, Rivers’s noncompliance has
interfered with the judicial process because it prevents timely adjudication of the complaint and
pending motion. Under factor three, Rivers is fully culpable for his noncompliance. Under factor
four, Rivers had ample notice because I issued two orders to show cause alerting him that his

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case would be dismissed with prejudice if he failed to respond. And under factor five, lesser
sanctions would be ineffective because Rivers has not complied with the discovery process and
has been non-responsive to court orders, which prevents the case from progressing forward.
For these reasons, I recommend the Court dismiss this case with prejudice.
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party
wants to have appellate review of the Proposed Findings and Recommended Disposition. If
no objections are filed, no appellate review will be allowed.
__________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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