Domai v. American Express et al
Filing
37
MEMORANDUM DECISION and ORDER denying without prejudice 30 Motion to Dismiss; denying 35 Motion to Set Aside. Signed by Judge Ted Stewart on 10/15/2014. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GUY M. DOMAI,
Plaintiff,
v.
MEMORANDUM DECISION AND
ORDER DENYING WITHOUT
PREJUDICE DEFENDANT’S MOTION
FOR DISMISSAL PURSUANT TO RULES
37, 41, AND 56
AMERICAN EXPRESS CORPORATION,
et al.,
Defendants.
Case No. 2:13-CV-567 TS
District Judge Ted Stewart
This matter is before the Court on Defendant American Express Corporation’s Motion for
Dismissal Pursuant to Federal Rules of Civil Procedure 37, 41, and 56 and Plaintiff’s Motion to
Set Aside. For the reasons discussed more fully below, the Court will deny Defendant’s Motion
without prejudice and deny Plaintiff’s Motion.
Pro se Plaintiff Guy M. Domai filed his initial complaint on June 26, 2013. 1 After an
initial pretrial conference, a scheduling order was entered that required each party’s initial
pretrial disclosures to be submitted by December 31, 2013. 2 To date, Plaintiff has not submitted
his initial pretrial disclosures. On April 7, 2014, Defendant served written discovery on
Plaintiff. 3 To date, Plaintiff has not responded to Defendant’s discovery request or sought an
extension from the Court. On April 14, 2014, the Court granted Plaintiff an extension of time to
file his Amended Complaint, which required Plaintiff to file his Amended Complaint by May 2,
1
Docket No. 1.
2
Docket No. 23.
3
Docket No. 30, Ex. B.
2014. 4 To date, Plaintiff has not submitted his Amended Complaint. The scheduling order sets
the deadline for discovery for June 11, 2014. To date, Plaintiff has not sought discovery from
Defendant and has not responded to discovery requests from Defendant. Defendant claims that
Plaintiff has been unresponsive to all of Defendant’s requests to schedule Plaintiff’s deposition.
Defendant moves for dismissal under Rule 37 based on Plaintiff’s failure to participate in
discovery. Rule 37 provides in relevant part, “The court . . . may, on motion, order sanctions
if . . . a party . . . fails, after being served with proper notice, to appear for that person’s
deposition.” 5 Rule 37 also states that such sanctions may include dismissal of the case in whole
or in part. 6 Alternatively, Defendant moves for dismissal under Rule 41, which provides in
relevant part, “If the Plaintiff fails to prosecute or comply with these rules or a court order, a
defendant may move to dismiss the action or any claim.” 7
The Court considers several factors before dismissing a case under Rules 37 or 41
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.” 8
The Court has not warned Plaintiff that his failure to participate in discovery or prosecute
his claim could result in sanctions including dismissal. Although the other factors may weigh in
4
Docket No. 27.
5
Fed. R. Civ. P. 37(d)(1)(A).
6
Fed. R. Civ. P. 37(b)(2)(A)(v).
7
Fed. R. Civ. P. 41(b).
8
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992); see also Mobley v.
McCormick, 40 F.3d 337, 341 (10th Cir. 1994).
2
favor of dismissal, given that Plaintiff is a pro se litigant, the Court will not dismiss the case
without first putting Plaintiff on actual notice of the possible dismissal of his claims for failure to
participate in discovery and failure to prosecute his claim. Therefore, the Court will deny
Defendant’s Motion to Dismiss under Rules 37 and 41 without prejudice. Plaintiff is on notice
that if he does not participate in discovery or prosecute his claims, the Court may dismiss his
claims under Rules 37 and 41.
Defendant also moves for dismissal under Rule 56. Under Rule 56, the Court will “grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” 9 To date, Plaintiff has not responded
to Defendant’s motion for summary judgment. The Court will allow Plaintiff an additional 30
days to respond to Defendant’s Motion under Rule 56. If Plaintiff does not respond within 30
days, the Court may consider Defendant’s Motion as unopposed or order sanctions up to and
including terminating sanctions.
Plaintiff moves to set aside default. 10 The Court will deny Plaintiff’s Motion as there is
no default to set aside. Plaintiff’s Motion also indicates his intention to file an Amended
Complaint. 11 If Plaintiff wants to file an amended complaint, he must file a motion under Rule
15.
It is therefore
ORDERED that Defendant American Express Corporation’s Motion for Dismissal
Pursuant to Rule 37, 41, and 56 (Docket No. 30) is DENIED without prejudice. It is also
9
Fed. R. Civ. P. 56(a).
10
Docket No. 35.
11
Id.
3
ORDERED that Plaintiff respond to Defendant’s Motion for Summary Judgment within
30 days. Failure to do so may result in sanctions up to and including terminating sanctions. It is
also
ORDERED that Plaintiff’s Motion to Set Aside (Docket No. 35) is DENIED.
DATED this 15th day of October, 2014.
BY THE COURT:
Ted Stewart
United States District Judge
4
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