Ellefson et al v. Kenstler et al

Filing 26

ORDER Dismissing Case. Signed by Chief Judge Jeffrey L. Viken on 9/4/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CYNTHIA ELLEFSON and
HECTOR SEGURA
Plaintiffs,
vs.
MICHELLE KENSTLER,
JUDGE BASTIAN,
WATER DEPART. IRR,
SHERIFF OF BUTTE COUNTY,
TOM SEAMAN, and
RANDY SEAMAN,
Defendants.

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CIV. 14-5001-JLV

ORDER OF DISMISSAL

Plaintiffs Cynthia Ellefson and Hector Segura, appearing pro se, filed an
amended complaint against the above-named defendants. (Docket 6).
Defendant Judge Bastian filed a motion to dismiss the complaint. (Docket 8).
Pursuant to Fed. R. Civ. P. 12(b)(6), Judge Bastian’s motion asserts the
complaint fails to state a claim upon which relief can be granted as Judge
Bastian is entitled to absolute immunity. Id. Judge Bastian asks the court to
take judicial notice of a state court proceeding involving these plaintiffs and
some of the defendants in which he was the presiding judge. (Docket 9 at p. 2).
Defendants Water Department and Sheriff of Butte County filed motions for a
more definite statement. (Dockets 11 & 13). Defendant Michelle Kenstler filed
a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6). (Docket 15).
Ms. Kenstler’s motion asks for dismissal of plaintiffs’ complaint because there

is a lack of diversity of citizenship and the amount in controversy does not
exceed $75,000 as required by 28 U.S.C. § 1332. (Docket 16 at p. 2).
Defendant Tom Seaman1 filed a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and 28 U.S.C. § 1332(a) for lack of subject matter jurisdiction. (Docket
17). Mr. Seaman asserts plaintiffs’ complaint is improper as there is not
complete diversity between the plaintiffs and Mr. Seaman and the amount in
controversy does not exceed $75,000. Id. Plaintiffs did not file responses to
any of the defendants’ motions, although Fed. R. Civ. P. 41(b) and D.S.D. Civ.
LR 7.1(B) requires them to do so within twenty-one calendar days of service of
defendants’ motions.
On June 25, 2014, the court issued an order to Ms. Ellefson and Mr.
Segura directing them to file a responsive brief by July 31, 2014. (Docket 22 at
p. 6). The order cautioned plaintiffs that their “[f]ailure to comply with this
order may result in the dismissal of the complaint with prejudice and without
further notice.” Id. On July 7, 2014, plaintiffs requested additional time to file
their response. (Docket 23). On July 9, 2014, the court granted plaintiffs an
extension until August 22, 2014, to file their brief. (Docket 25). As of the date
of this order, plaintiffs have not filed their brief or sought a further extension of
time to do so.

1

Plaintiffs make the same claims against Randy Seaman as against Tom
Seaman. (Docket 6 at p. 3). The Clerk of Court issued a summons and
delivered it to plaintiff Hector Segura. (Docket 7). Plaintiffs have not filed a
certificate of service and there is no other evidence indicating service of process
was made upon Randy Seaman.
2

Plaintiffs’ pro se status does not entitle them to disregard the Federal
Rules of Civil Procedure. Bennett v. Dr. Pepper/Seven Up, Inc., 295 F.3d 805,
808 (8th Cir. 2002). Pro se litigants also must comply with court rules and
directives. Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005). However,
plaintiffs’ failure to respond to defendants’ motions and motions to dismiss
“does not automatically compel resolution of [the motions] in favor of
[defendants].” United States v. One Parcel of Real Prop., 27 F.3d 327, 329 n.1
(8th Cir. 1994); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1213 (8th
Cir. 1997) (“When a motion would be dispositive of the merits of the cause if
granted, courts should normally not treat a failure to respond to the motion as
conclusive.”); Soliman, 412 F.3d at 922 (determining whether summary
judgment was appropriate on the merits despite a plaintiff’s failure to respond
to a defendant’s summary judgment motion).
The court need not reach the merits of defendants’ motions and declines
to do so. Unlike the majority of cases where the district court resolved a
motion on the merits despite a plaintiff’s failure to respond, here, the court
advised plaintiffs of their obligation to respond and ordered them to show
cause.2 Thus, the court finds plaintiffs’ nonresponsiveness particularly
egregious.
2

The court had no duty to advise plaintiffs of their obligation to respond
to defendants’ motions and the procedure for doing so. See Bennett, 295 F.3d
at 808 (finding the court did not have an affirmative duty to advise a pro se
litigant of the date by which he was to respond to a motion); Beck v. Skon, 253
F.3d 330, 333 (8th Cir. 2001) (finding the district court was not required to
instruct a pro se litigant on how to properly respond to a motion).
3

“A district court has discretion to dismiss an action under [Fed. R. Civ. P.
41(b)] for a plaintiff’s failure to prosecute, or to comply with Federal Rules of
Civil Procedure or any court order.” Henderson v. Renaissance Grand Hotel,
267 Fed. Appx. 496, 2008 WL 540172 at *1 (8th Cir. 2008); see also Link v.
Wabash R.R. Co., 370 U.S. 626, 630-33 (1962) (finding a district court may
dismiss an action under Rule 41(b) on its own initiative and “without affording
notice of its intention to do so or providing an adversary hearing before
acting[,]” and recognizing a district court has the inherent authority to “manage
[its] own affairs so as to achieve the orderly and expeditious disposition of
cases[]”). The court finds dismissal of plaintiffs’ complaint is appropriate given
their disregard of the rules and the court’s show cause order.
In support of its finding, the court notes plaintiffs have been engaged in
litigation in state court.3 Given plaintiffs former involvement in that litigation,
the court finds they have the capacity to litigate this lawsuit. Dismissal is an
appropriate sanction given plaintiffs’ noncompliance with the show cause
order.
The court next must determine whether the dismissal of plaintiffs’
complaint should be with or without prejudice. “Dismissal with prejudice is an
extreme sanction and should be used in cases of willful disobedience of a court

3

The court takes judicial notice of Michelle M. Kenstler, individually and
as Personal Representative of the Jedd Kenstler Estate, Plaintiff v. Cynthia
Ellefson and Hector Segura, and Butte County, South Dakota, Defendants,
Butte County Civ. 09-121, Fourth Judicial Circuit, State of South Dakota. See
Docket 9 at p. 2.
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order or continued persistent failure to prosecute a complaint.” Givens v. A.H.
Robins Co., Inc., 751 F.2d 261, 263 (8th Cir. 1984). Based on the procedural
history of this case and plaintiffs’ failure to respond to the court’s show cause
order, the court finds it appropriate to dismiss the complaint with prejudice.
Accordingly, pursuant to Rule 41(b) and the court’s inherent authority, it is
hereby
ORDERED that plaintiffs’ amended complaint (Docket 6) is dismissed
with prejudice.
IT IS FURTHER ORDERED that defendant Bastian’s motion to dismiss
(Docket 8) is denied as moot.
IT IS FURTHER ORDERED that defendant Water Depart. IRR’s motion
for a more definite statement (Docket 11) is denied as moot.
IT IS FURTHER ORDERED that defendant Sheriff of Butte County’s
motion for a more definite statement (Docket 13) is denied as moot.
IT IS FURTHER ORDERED that defendant Seaman’s motion to dismiss
(Docket 17) is denied as moot.
Dated September 4, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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