Olsen et al v. USA

Filing 43

MEMORANDUM DECISION and ORDER granting in part 40 Motion to Dismiss for Lack of Prosecution. Signed by Judge Ted Stewart on 8/11/2015. (blh)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ASHLEY ELIZABETH OLSEN, et al.,
MEMORANDUM DECISION AND
ORDER GRANTING IN PART
DEFENDANT’S MOTION TO
DISMISS

Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

Case No. 2:12-CV-1184 TS

This matter is before the Court on Defendant’s Motion to Dismiss under Federal Rules of
Civil Procedure 37 and 41. For the reasons discussed more fully below, the Court will grant
Defendant’s Motion in part and dismiss Plaintiffs’ claims without prejudice.
I. BACKGROUND
On December 12, 2012, Plaintiffs filed their complaint against the United States under
the Federal Tort Claims Act, 28 U.S.C. §§ 2671 to 2680.1 On July 25, 2013, Plaintiffs’ counsel
moved to withdraw from this action and the Court granted counsel’s motion to withdraw on
September 11, 2013.2 Plaintiffs proceeded pro se. On November 22, 2013, the Court issued an
Order to Show Cause why Plaintiffs’ claims should not be dismissed for failing to prosecute their
case and, upon hearing from Plaintiffs, the Court allowed Plaintiffs’ claims to remain.3 Plaintiffs
were warned that the failure to prosecute could result in dismissal.

1

Docket No. 1.

2

Docket No. 18.

3

Docket No. 23.

1

On May 12, 2015, the Court held a hearing where the Court asked Defendant’s counsel to
speak with Plaintiffs about how to comply with the Magistrate Judge’s order. The parties agreed
to allow Plaintiffs up until May 22, 2015, to respond to Defendant’s interrogatories and other
discovery requests.4 To date, Plaintiffs have not responded.
On June 1, 2015, Defendants filed this Motion to Dismiss.5 Plaintiffs have not
substantively responded and the time to do so has passed.6
II. DISCUSSION
Given Plaintiffs’ failure to comply with the Court’s order, prosecute their claims, and
respond to Defendant’s Motion, the Court could likely dismiss Plaintiffs’ claims with prejudice.
Considering, however, Plaintiffs’ pro se status, the Court will dismiss Plaintiffs’ claims without
prejudice.
Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action
without prejudice “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of
Civil Procedure] or a court order.”7 “[A] district court may, without abusing its discretion, enter
such an order without attention to any particular procedures.”8

4

Docket No. 39.

5

Docket No. 40.

6

On June 16, 2015, the Court received a letter from Plaintiffs (Docket No. 41), but
the letter does not substantively respond to Defendant’s Motion.
7

Fed. R. Civ. P. 41(b); see also Olsen v. Mapes, 333 F.3d 1199, 1204 & n.3 (10th

Cir. 2003).
8

Nasious v. Two Unknown B.I.C.E Agents, 492 F.3d 1158, 1162 (10th Cir. 2007). By
contrast, a court’s decision to dismiss a case with prejudice is a harsher remedy that requires the
consideration of certain criteria. Id. See also AdvantageEdge Bus. Grp. v. Thomas E.
Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (stating that where “the district
court dismissed AdvantEdge’s case without prejudice, . . . it was not required to consider the
criteria applicable to a dismissal with prejudice”).

2

Considering the facts of this case, the Court finds that dismissal of Plaintiffs’ claims
without prejudice is appropriate. As set forth above, the Court provided Plaintiffs several
opportunities to participate in discovery and prosecute their claims, but Plaintiffs’ have chosen
not to do so. When faced with the prospect of dismissal in the form of Defendant’s Motion to
Dismiss, Plaintiffs have not substantively responded. Therefore, the Court finds it appropriate to
dismiss Plaintiffs’ claims, but will do so without prejudice given Plaintiffs’ pro se status.
III. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion to Dismiss (Docket No. 40) is GRANTED in part as
set forth herein. Plaintiffs’ claims are dismissed without prejudice.
The Clerk of the Court is directed to close this case forthwith.
DATED August 11, 2015.
BY THE COURT:

________________________________________
TED STEWART
United States District Judge

3