Koger v. United Parcel Service Inc

Filing 176

ORDER granting 175 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 9/13/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CADEN KOGER,
an individual,
Plaintiff,
v.
UNITED PARCEL SERVICE,
INC., a foreign corporation,
Defendant.

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Case No. CIV-15-36-D

ORDER
On July 20, 2016, the Court granted Plaintiff’s counsel Motion to Withdraw
as Counsel of Record [Doc. No. 173]. In that order, the Court directed Plaintiff to,
within thirty days, either retain new counsel or file a pro se entry of appearance. Id.
at 1. To date, nearly two months later, Plaintiff has not complied with the Court’s
directive. Defendant, accordingly, moves to dismiss this action with prejudice
[Doc. No. 175]. Plaintiff has not responded to the motion.
When circumstances make such action appropriate, a district court may, on
its own motion or by that of a party, dismiss an action because of a party’s failure
to comply with court orders designed to ensure orderly prosecution of the case.
Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (noting that district court’s
authority to dismiss for lack of prosecution is necessary to prevent undue delays in
the disposition of pending cases and avoid congestion in district court calendars);

see also Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993). Here, the Court
finds that dismissal is appropriate; however, dismissal of this action with prejudice
is, in the Court’s view, an unnecessary and extreme sanction under the
circumstances.1 This case is set for trial on the November 2016 trial docket.
Plaintiff was directed to retain new counsel and by virtue of his refusal or failure to
do so, these proceedings have been delayed and Defendant has been unfairly
prejudiced due to Plaintiff’s inaction. Nonetheless, this appears to be Plaintiff’s
first instance of noncompliance with a court order and a dismissal with prejudice
was not in consideration when the Court granted counsel’s Motion to Withdraw.
Accordingly, Defendant’s Motion for Dismissal [Doc. No. 175] is GRANTED IN
PART. The present matter is hereby dismissed without prejudice to Plaintiff’s
right to refile.

1

In Jones, the Tenth Circuit cautioned district courts to consider a number of
factors before choosing dismissal as a sanction. Id. at 264 (citing Ehrenhaus v.
Reynolds, 965 F.2d 916 (10th Cir. 1992)). These factors include (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. Id.; but see Florence v. Decker, 153 F.
App’x 478, 480 (10th Cir. 2005) (unpublished) (noting such factors are
inapplicable where dismissal is without prejudice because “dismissal without
prejudice is not an extreme sanction because the remedy is simply to cure the
defect and refile the complaint.”).

IT IS SO ORDERED this 13th day of September, 2016.