Baity v. Brad Hall and Associates

Filing 55

ORDER by Magistrate Judge Steven C. Yarbrough adopting in part 54 Proposed Findings and Recommended Disposition, granting 43 Second Motion to Compel, and dismissing Plaintiff's Complaint without prejudice. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JAMARE DIRRICK BAITY,
Plaintiff,
v.

CIV 18-0183 SCY/JHR

BRAD HALL AND ASSOCIATES
d/b/a GOOD 2 GO STORES, LLC,
Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Magistrate Judge Ritter’s Proposed Findings
and Recommended Disposition (“PFRD”), filed June 11, 2019. Doc. 54. Pursuant to 28 U.S.C. §
636(c) and Fed. R. Civ. P. 73(b), the parties have consented to have me serving as the presiding
judge and entering final judgment. Docs. 5, 6, 8.
On January 4, 2019, Defendant filed its Second Motion to Compel, seeking to compel
Plaintiff’s responses to Defendant’s Second Set of Requests for Production, or seeking dismissal
of this action under Federal Rule of Civil Procedure 37(b)(2)(A) for Plaintiff’s failure to comply
with a discovery order. Rule 37(b)(2)(A) provides that “if a party . . . fails to obey an order to
provide or permit discovery . . . the court where the action is pending may issue further just
orders.” Such further orders can include “dismissing the action or proceeding in whole or in
part,” or “rendering a default judgment against the disobedient party”. Fed. R. Civ. P.
37(b)(2)(A)(v), (vi). When determining whether to impose Rule 37(b) sanctions, the Tenth
Circuit has provided five factors for the court to balance. Ehrenhaus v. Reynolds, 965 F.2d 916,
920-21 (10th Cir. 1992) (“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.” (citations omitted)).
In the PFRD, Judge Ritter reviewed the procedural history of this case and the Ehrenhaus
factors, finding that, on balance, the factors weigh in favor of imposing Rule 37(b) sanctions on
Plaintiff. Doc. 54 at 6. Defendant requested that the sanction imposed be dismissal of Plaintiff’s
case. Doc. 43 at 4. However, Judge Ritter recommended imposing default judgment against
Plaintiff. Judge Ritter filed his recommendation on June 11, 2019. Doc. 54. He notified the
parties of their ability to file objections within fourteen days and that failure to do so waives
appellate review. Doc. 54 at 7. To date, no objections have been filed and there is nothing in the
record indicating that the PFRD was not delivered.
The Court adopts the analysis in the PFRD, holding that the Ehrenhaus factors weigh in
favor of imposing sanctions on Plaintiff under Rule 37(b)(2)(A). However, instead of default
judgment, the Court will dismiss Plaintiff’s Complaint without prejudice under Rule
37(b)(2)(A)(v). Compare Ehrenhaus, 965 F.2d at 921, with Derma Pen, LLC v. 4EverYoung
Ltd., 736 F. App’x 745-46 (10th Cir. 2018) (applying the Ehrenhaus factors whether the court is
considering dismissal or default judgment under Rule 37(b)).
Wherefore,
IT IS HEREBY ORDERED AS FOLLOWS:
1.

The Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc.
54) is ADOPTED IN PART;

2.

Defendant’s Second Motion to Compel (Doc. 43) is GRANTED; and
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3.

Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE.

____________________________________
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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