McDaniel et al v. United States of America et al
Filing
302
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson Granting 538 MOTION to Withdraw as Attorney on Behalf of Plaintiffs' Walter White, Jo Ann Duncan and Jeremiah Booher, and 633 MOTION to Dismiss Party Walter White, Jo Ann Duncan, and Jeremiah Booher. Associated Cases: 1:18-md-02824-WJ, 1:17-cv-00710-WJ-SCY (meq)
Case 1:17-cv-00710-WJ-SCY Document 302 Filed 08/27/20 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015
No. 1:18-md-02824-WJ
This Document Relates to: No. 1:17-cv-00710-WJ-SCY
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO WITHDRAW AND
GRANTING JOINT MOTION TO DISMISS THREE PLAINTIFFS
THIS MATTER comes before the Court on Will Ferguson & Associates’ Stipulated
Motion to Withdraw on Behalf of Plaintiffs Walter White, Jo Ann Duncan, and Jeremiah Booher,
Doc. 538, filed April 14, 2020 (“Motion to Withdraw”), and Defendants Environmental
Restoration, Weston Solutions, and the United States’ Motion for Dismissal of Plaintiffs Walter
White, Jo Ann Duncan, and Jeremiah Booher, Doc. 633, filed June 12, 2020 (“Motion to
Dismiss”).
Motion to Withdraw
Will Ferguson & Associates seeks an order granting leave to withdraw as counsel of record
for Plaintiffs Walter White, Jo Ann Duncan, and Jeremiah Booher (“Nonresponsive Plaintiffs”) on
the following grounds:
[T]hese Plaintiffs have substantially failed to fulfill their obligations pertaining to
their representation in this case. These Plaintiffs have not responded to undersigned
counsel’s attempts to contact them and, despite best and numerous efforts,
undersigned counsel has been unable to secure these Plaintiffs’ participation in this
case and they have not completed or submitted their required Plaintiff
Questionnaire.
Motion to Withdraw at 1. No responses opposing the Motion to Withdraw have been filed.
Counsel for the Nonresponsive Plaintiffs states he “was unable to obtain their consent to counsel’s
withdrawal of representation.” Motion to Withdraw at 2.
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The Court grants Will Ferguson & Associates Motion to Withdraw. Although the District
of New Mexico’s Local Rules of Civil Procedure require that a motion to withdraw must indicate
consent of the client represented by the withdrawing attorney, see D.N.M.LR-Civ. 83.8, the Local
Rules also allow a Judge to waive the Local Rules to avoid injustice, see D.N.M.LR-Civ. 1.7. The
Court finds it would be unfair to require counsel to continue to represent Parties who fail to
participate in this case and do not maintain communication with counsel.
Motion to Dismiss
On November 11, 2019, the Court entered an Order requiring the individual Plaintiffs to
submit discovery questionnaires by January 31, 2020. See Doc. 374 at 2. The Nonresponsive
Plaintiffs failed to submit their discovery questionnaires by January 31, 2020. See Decl. of David
Hammack at ¶ 3, Doc. 633-1.
On February 21, 2020, Defendant Environmental Restoration served requests for
admissions and interrogatories to the Nonresponsive Plaintiffs. See Environmental Restoration,
LLC’s Certificate of Service, Doc. 471. Plaintiffs failed to respond as of June 12, 2020. See Decl.
of David Hammack at ¶ 4, Doc. 633-1 (stating responses were due March 23, 2020).
Defendants Environmental Restoration, Weston Solutions, and the United States seek
dismissal with prejudice of the claims of Nonresponsive Plaintiffs pursuant to Fed. R. Civ. P. 41(b)
for failure to prosecute and pursuant to Fed. R. Civ. P. 37(b)(2) for violation of a Discovery Order.
Rule 41(b) states: “For failure of the plaintiff to prosecute or to comply with these rules or
any order of court, a defendant may move for dismissal of an action or of any claim against the
defendant.” Fed. R. Civ. P. 41(b).
The sanction of dismissal with prejudice for failure to prosecute is a “severe
sanction,” a measure of last resort. Jones v. Thompson, 996 F.2d 261, 265 (10th
Cir.1993); see Meade v. Grubbs, 841 F.2d 1512, 1521 n. 7 (10th Cir.1988).
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We have identified a non-exhaustive list of factors that a district court ordinarily
should consider in determining whether to dismiss an action with prejudice under
Rule 41(b): (1) the degree of actual prejudice to the other party; (2) the amount of
interference with the judicial process; (3) the litigant's culpability; (4) whether the
court warned the party in advance that dismissal would be a likely sanction for
noncompliance; and (5) the efficacy of lesser sanctions. Ehrenhaus, 965 F.2d at
921; see Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir.1994) ( “Rule 41(b)
involuntary dismissals should be determined by reference to the Ehrenhaus
criteria.”). Under this flexible framework, established in our Ehrenhaus decision,
dismissal is warranted when “the aggravating factors outweigh the judicial system's
strong predisposition to resolve cases on their merits.” Ehrenhaus, 965 F.2d at 921
(internal quotation marks omitted; quoting Meade, 841 F.2d at 1521 n. 7).
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143-44 (10th Cir. 2007).
Rule 37(b)(2) provides: “If a party … fails to obey an order to provide or permit discovery,”
the Court may issue an order “dismissing the action.” Fed. R. Civ. P. 37(b)(2)(A)(v). “[D]ismissal
represents an extreme sanction appropriate only in cases of willful misconduct.” Ehrenhaus v.
Reynolds, 965 F.2d 916, 920, 918 (10th Cir. 1992) (“consider[ing] the scope of a district court’s
discretion to dismiss a complaint with prejudice pursuant to Rule 37(b)(2) … as a sanction for the
intentional violation of a discovery order”).
Before choosing dismissal as a just sanction, a court should ordinarily consider a
number of 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. Only when the aggravating factors outweigh the judicial system's strong
predisposition to resolve cases on their merits is dismissal an appropriate sanction.”
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (citations omitted).
The Nonresponding Plaintiffs’ failure to provide discovery prejudices Defendants to a high
degree by causing delay and increased attorney’s fees, and interferes with the judicial process in
the adjudication of claims of three sovereign Plaintiffs and hundreds of individual Plaintiffs. The
United States Judicial Panel on Multidistrict Litigation centralized the member cases of this
Multidistrict Litigation to promote the just and efficient conduct of the proceedings to “avoid
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duplicative, complex discovery and other pretrial proceedings.” Transfer Order, Doc. 1, filed
April 4, 2018. Allowing the Nonresponding Plaintiffs to proceed with their claims without
providing timely discovery will undermine the goal of centralization.
It appears that the Nonresponsive Plaintiffs are intentionally refusing to provide discovery
because their attorney reports that they “have not responded to undersigned counsel’s attempts to
contact them and, despite best and numerous efforts, undersigned counsel has been unable to
secure these Plaintiffs’ participation in this case and they have not completed or submitted their
required Plaintiff Questionnaire.” Doc. 538 at 1.
The Special Master, the Honorable Alan C. Torgerson, notified the Nonresponsive
Plaintiffs on June 10, 2020, that dismissal of their claims may result from their failure to provide
discovery when he entered an Order notifying all Parties that the United States agreed to file a
motion to dismiss the Nonresponsive Plaintiffs. See Order Resulting from Telephonic Status
Conference held May 29, 2020, Doc. 632 at 1.
The Court finds that lesser sanctions will not cause the Nonresponsive Plaintiffs to timely
provide discovery because the Nonresponsive Plaintiffs failed to comply with the Special Master’s
Order regarding Plaintiff Questionnaires, failed to respond to Defendant Environmental
Restoration, LLC’s requests for admissions and interrogatories, and failed to communicate with
their attorney. The Special Master filed his Order regarding Plaintiff Questionnaires on November
19, 2019, and set a deadline of January 31, 2020, for submitting the Questionnaires. It is now
almost seven months after the deadline for submitting the Questionnaires. Any further delay will
risk delaying the trial, set for next year, of hundreds of claims of the responding Plaintiffs and
increase the attorney’s fees of Defendants. The Court, therefore, dismisses the claims of the
Nonresponding Plaintiffs with prejudice.
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IT IS ORDERED that:
(i)
Will Ferguson & Associates’ Stipulated Motion to Withdraw on Behalf of Plaintiffs
Walter White, Jo Ann Duncan, and Jeremiah Booher, Doc. 538, filed April 14,
2020, is GRANTED.
(ii)
Defendants Environmental Restoration, Weston Solutions, and the United States’
Motion for Dismissal of Plaintiffs Walter White, Jo Ann Duncan, and Jeremiah
Booher, Doc. 633, filed June 12, 2020, is GRANTED.
________________________________________
CHIEF UNITED STATES DISTRICT JUDGE
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