Hristodor v. Stream Global Services-AZ, Inc.

Filing 29

REPORT AND RECOMMENDATIONS by Magistrate Judge Laura Fashing. The Clerk is directed to mail Ms. Hristodor a copy of these Proposed Findings andRecommended Disposition at her address of record. Objections to R&R due by 7/5/2017. 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).) (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MIHAELA HRISTODOR,
Plaintiff,
v.

No. 1:16-cv-01321-SCY-LF

STREAM GLOBAL SERVICES-AZ, INC.,
and its predecessor in interest, CONVERGYS
CUSTOMER MANAGEMENT GROUP INC.,
Defendants.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the sua sponte order to show cause issued to
pro se plaintiff Mihaela Hristodor. Doc. 28. The Court issued the order to show cause because
Ms. Hristodor failed to attend a telephonic status conference on June 5, 2017. See id.; see also
Doc. 27. Ms. Hristodor was required to respond to the order to show cause no later than June 19,
2017. Doc. 28. The record indicates that the order was mailed to Ms. Hristodor at her address of
record. There is no indication that Ms. Hristodor did not receive the order to show cause.
Nevertheless, Ms. Hristodor has not responded to that order. This is the second time Ms.
Hristodor has failed to obey an order of the Court. Ms. Hristodor has not filed anything with the
Court or participated in the prosecution of this case since her attorney withdrew in April 2017.
See Doc. 21.
The Court may issue any just orders, including sanctions authorized by Rule 37(b)(2)(A)
(ii)–(vii), if a party fails to appear at a scheduling or other pretrial conference, see FED. R. CIV. P.
16(f), or fails to obey a court order, see FED. R. CIV. P. 41(b). Rule 16(f) “indicates the intent to
give courts very broad discretion to use sanctions where necessary to insure . . . that lawyers and
parties . . . fulfill their high duty to insure the expeditious and sound management of the

preparation of cases for trial.” Gripe v. City of Enid, 312 F.3d 1184, 1188 (10th Cir. 2002)
(quoting Mulvaney v. Rivair Flying Serv., Inc. (In re Baker), 744 F.2d 1438, 1440 (10th Cir.
1984) (en banc)). “It is within a court’s discretion to dismiss a case if, after considering all the
relevant factors, it concludes that dismissal alone would satisfy the interests of justice.”
Ehrenhaus v. Reynolds, 965 F.2d 916, 918 (10th Cir.1992).
Before imposing dismissal as a sanction, a district court should evaluate the following
factors on the record: “(1) the degree of actual prejudice to the [other party]; (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.” Gripe, 312 F.3d at 1188 (summarizing
the Ehrenhaus factors). Dismissal as a sanction under Rule 16(f) should ordinarily be evaluated
under the same factors. See id. “The factors do not create a rigid test but are simply criteria for
the court to consider.” Id. (citing Ehrenhaus, 965 F.2d at 921). Upon analyzing the Ehrenhaus
factors, I recommend that this case be dismissed as a sanction for failing to appear at the status
conference and failing to obey the Court’s order.
First, Ms. Hristodor’s failure to participate has caused prejudice to defendants.
Defendants have expended time and money attending the status conference, participating in
discovery, and seeking assistance from the Court for protection from the numerous and often
abusive emails from Ms. Hristodor. See Docs. 17, 19, 20, 21, 26. Second, Ms. Hristodor’s lack
of participation has interfered with the judicial process. The case has been stymied by Ms.
Hristodor’s refusal to attend the status conference or respond to the Court’s order. The case
cannot move forward without her participation. Third, Ms. Hristodor alone is culpable for
violating the Court’s orders. The Court granted Ms. Hristodor’s attorney’s motion to withdraw

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from the case on April 27, 2017. Doc. 22. Since then, Ms. Hristodor has represented herself.
The Court vacated the scheduled settlement conference and set a telephonic status conference
that Ms. Hristodor was required to attend. Doc. 23. The Court scheduled the June 5 status
conference at a status conference on May 2, 2017, at which Ms. Hristodor appeared personally.
See Doc. 24. Ms. Hristodor therefore had notice of the status conference. Further, the record
indicates that the Court’s order setting the June 5 status conference was mailed to Ms. Hristodor.
See Docket entry for Doc. 25. There is no indication that Ms. Hristodor did not receive the
Court’s order. Ms. Hristodor has not provided any reason for failing to attend the status
conference. Fourth, the Court warned Ms. Hristodor in the order to show cause that her failure to
comply or respond to the order would result in a recommendation to the presiding judge that her
lawsuit be dismissed without prejudice. Doc. 28 at 2. Despite this warning, Ms. Hristodor
ignored the Court’s order and failed to respond, indicating that lesser sanctions would not be
effective.
Because the Ehrenhaus factors weigh in favor of dismissal, I recommend that pro se
plaintiff Mihaela Hristodor’s complaint be dismissed without prejudice.
The Clerk is directed to mail Ms. Hristodor a copy of these Proposed Findings and
Recommended Disposition at her address of record.
THE PARTIES ARE FURTHER 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)(C). 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.
______________________________________
Laura Fashing
United States Magistrate Judge

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