Allred et al v. Pacificorp

Filing 241

MEMORANDUM DECISION granting 224 Motion to Dismiss Parties: Lionel Berry ((496)), Will Camellot ((496)), Karen Carlyle ((496)), Martina Conner ((496)), Custodian for Paul K Smith IRA ((496)), Ann Elwood ((496)), Anne Garcia ((496)), Lee Geller ((496)), Wayne Guss ((496)), W. Mary R. Hanley ((496)), Danielle Hansen ((496)), Janet Huggins ((496)), David Hughes ((496)), Intermountain Copy & Draft ((496)), Larry Johnson ((496)), Valerie Johnson ((496)), Feuur Kapp ((496)), Mac Loveridge ((496)), Mary Maughan ((496)), Patrick McClellan ((496)), Everett Miller ((496)), Kyle Miller ((496)), Linda A.W. Monosson ((496)), Sarah Moyes ((496)), Micheal Rory Mumms ((496)), Deborah Nelson ((496)), Gary Rasmus sen ((496)), Matthew Reber ((496)), Monty Reber ((496)), Scott Shumway ((496)), Dale Tucker ((496)), Afualo Valeen ((496)), Jaclyn Wall ((496)), Bank of Utah ((496)) and Gordon Beh ((496)) are dismissed with prejudice.The only Plaintiffs remaining in this case are Gerald Hunsacker (dba Covington Capital), Bill Baker, and Phyllis Baker. Signed by Judge David Nuffer on 6/25/18 (alt)

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

PHILLIP ALLRED, et al.,
Plaintiffs,
v.
PACIFICORP, dba ROCKY MOUNTAIN
POWER COMPANY, an Oregon Company,
Defendant.

MEMORANDUM DECISION AND
ORDER GRANTING [224] MOTION TO
DISMISS (REMAINING BROWN
PLAINTIFFS)
Case No. 2:15-cv-00095 DN
District Judge David Nuffer

Defendant Pacificorp d/b/a Rocky Mountain Power Company filed a motion to dismiss a
group of named plaintiffs (“Motion to Dismiss”). 1 On April 24, 2018, the Motion to Dismiss
was taken under advisement and the affected plaintiffs, and any other concerned party, were
afforded 28 days to respond to the Motion to Dismiss. 2
The plaintiffs at issue (referred to as the “Brown Plaintiffs”) were previously represented
by Mr. Russell Cline. On October 19, 2015, Mr. Cline was disqualified from the lawsuit. 3 The
litigation was stayed for twenty-one (21) days and the Brown Plaintiffs were ordered to enter an
appearance pro se or appoint counsel to represent them. 4 Mr. Cline was also ordered to

1

Motion to Dismiss (Remaining Brown Plaintiffs), docket no. 224, filed April 23, 2018.

2

Order Taking Under Advisement [224] Motion to Dismiss Remaining Brown Plaintiffs, docket no. 225, entered
April 24, 2018.
3

Order Granting Motion to Disqualify Counsel, docket no. 106, entered October 19, 2015.

4

Id.

personally send the Brown Plaintiffs notice of the court’s order. 5 On November 5, 2015, Mr.
Cline did so. 6 Two of the Brown Plaintiffs complied with the court’s order and appeared in the
case. 7 Other Brown Plaintiffs negotiated directly with Defendant to settle their claims. 8
However, almost two and a half years have passed and the remaining Brown Plaintiffs have not
appeared or appointed counsel in the case. The remaining Brown Plaintiffs were served with a
copy of the Motion to Dismiss. 9 Mr. Cline filed a response to the Motion to Dismiss. 10 D.W.
Crosby, a non-party, also lodged an objection to the Motion to Dismiss. 11 Defendant replied. 12
None of the remaining Brown Plaintiffs have filed a response, or otherwise responded to the
Motion to Dismiss.
After reviewing the filings and relevant authority, the Motion to Dismiss 13 is GRANTED
for the reasons set forth below.

5

Order Denying Motion to Stay and Ordering Russell A. Cline to Submit Proof of His Notification of Clients of the
Disqualification, docket no. 110, entered November 3, 2015.

6

Notice of Certificate of Mailing, docket no. 111, filed November 6, 2015.

7

Motion to Dismiss ¶ 7, at 4. See also docket no. 117, docket no. 118, docket no. 192, and docket no. 208.

8

Motion to Dismiss ¶ 7, at 4.

9

Motion to Dismiss at 4, n.2.

10

Response by Russell A. Cline to Motion to Dismiss Remaining Brown Plaintiffs [Doc. No. 224], docket no. 234,
filed May 16, 2018.
11

Docket no. 236, filed May 23, 2018. Mr. Crosby identifies himself as a “concerned individual . . .
acquainted with many of the parties” and objects to the Motion to Dismiss “on the grounds of fairness and
equity.” Id. Mr. Crosby is not an attorney and is not representing any named plaintiffs in this action.
Moreover, Mr. Crosby does not provide any factual or legal support for his objection. Docket no. 236.
Accordingly, his objection is not persuasive and does not raise any issues warranting attention.
12

Reply Memorandum in Support of Motion to Dismiss (Remaining Brown Plaintiffs), docket no. 238, filed May
30, 2018.
13

Docket no. 224.
2

DISCUSSION
An action may be dismissed, with or without prejudice, 14 “[i]f the plaintiff fails to
prosecute or to comply with these [procedural] rules or a court order.” 15 The power to invoke
this sanction is inherent in the court and “is necessary in order to prevent undue delays in the
disposition of pending cases and to avoid congestion in the calendars of the District Courts.” 16
“Dismissal for failure to prosecute should be imposed only after careful exercise of judicial
discretion. Nonetheless, dismissal is an appropriate disposition against a party who disregards
court orders and fails to proceed as required by court rules.” 17 The following five factors should
be considered when determining whether to dismiss a plaintiff’s claims:
(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 likely be a sanction
for noncompliance; and (5) the efficacy of lesser sanctions. 18
Each of these factors weigh in favor of dismissal.
First, the remaining Brown Plaintiffs’ behavior has caused actual prejudice to Defendant.
Defendant has a legitimate interest in bringing this matter to closure within a reasonable time. 19
The remaining Brown Plaintiffs’ failure to appear and pursue their claims has caused
unnecessary delay and costs upon Defendant.

14

Davis v. Miller, 571 F.3d 1058, 1060 (10th Cir. 2009) (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d
1158, 1161-62 (10th Cir. 2007)).
15

Fed. R. Civ. P. 41(b).

16

Link v. Wabash Railroad Co., 370 U.S. 626, 629 (1962).

17

U.S. ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005) (internal citations omitted).

18

Davis, 571 F.3d at 1061 (citing Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)).

19

Rogers v. Andrus Transp. Services, 502 F.3d 1147, 1152 (10th Cir. 2007).
3

The second factor is also met. Through their untimeliness and failure to respond to the
court’s order, the remaining Brown Plaintiffs have disregarded the court’s authority and the need
for a just, speedy and inexpensive determination of this action. Their inaction impedes the
court’s ability to manage its docket and administer orderly justice. 20
Third, the remaining Brown Plaintiffs’ culpability is uncontroverted. For over two years,
they have taken no action to prosecute their case. They alone are responsible for their failure to
appear and disobedience of the court’s order. 21
Fourth, the remaining Brown Plaintiffs were warned in the court’s order disqualifying
Mr. Cline that “[f]ailure to enter an appearance pro se or of an attorney to file a notice of
appearance . . . could result in dismissal of that Plaintiff’s case.” 22 Mr. Cline’s November 2015
notice to the Brown Plaintiffs reiterated the warning:
Mr. Cline no longer represents you in this case. You have until Friday, November
20, 2015, to obtain a new attorney or attorneys to represent you in this case or to
file a notice that you intend to appear pro se (without an attorney). Failure to enter
an appearance pro se or have an attorney file a notice of appearance on your
behalf could result in dismissal of your case. A copy of the current scheduling order
for this case is attached to this notice and contains deadlines relevant to your case.
The Court has stayed the case until November 20, 2015. 23

Although Mr. Cline no longer represents the remaining Brown Plaintiffs, he nonetheless
asserts that the remaining Brown Plaintiffs were not provided sufficient notice that their claims

20

Jones v. Thompson, 996 F.2d 261, 265 (10th Cir. 1993)).

21

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992).

22

Docket no. 106.

23

Docket no. 110 at 2 (emphasis added).
4

may be dismissed. 24 However, “’constructive notice—that is, notice (1) without an express
warning and (2) objectively based upon the totality of the circumstances (most importantly, the
trial court’s actions or words)’ is sufficient.” 25 The remaining Brown Plaintiffs have been
sufficiently warned in advance that dismissal of their claims would be a likely sanction for
failure to appear or appoint counsel. In addition to the notices sent by the court and Mr. Cline,
the remaining Brown also received a copy of the Motion to Dismiss that provided further
warning.
Finally, dismissal is in the interest of justice. Plaintiffs have an obligation to prosecute
their claims and to keep in touch with progress of the case. 26 Here, the remaining Brown
Plaintiffs have failed to take even the most preliminary steps of prosecuting this case. Despite
having ample time to do so, the remaining Brown Plaintiffs have not appeared or otherwise
responded to contest dismissal of their claims. No appropriate lesser sanctions have been
proposed by any party or non-party and none appear effective. In light of the circumstances,
dismissal is an appropriate sanction.

24

Docket no. 238. Aside from notice, Mr. Cline does not address any of the other relevant factors. Instead, Mr.
Cline argues that while the appeal of his disqualification is pending, the remaining Brown Plaintiffs’ claims should
not be dismissed. The status of Mr. Cline’s appeal is irrelevant to the court’s analysis. The court declined to stay
Mr. Cline’s disqualification pending his appeal. Docket no. 110. The remaining Brown Plaintiffs have been free to
enter their own appearance or to obtain other counsel.
25

Rogers, 502 F.3d at 1152.

26
Id.; see also 88 C.J.S. Trial § 39 (“A litigant has the responsibility for keeping track of his or her case and
knowing its status; therefore, a trial court owes no duty to notify a party of the setting of a case.”)

5

ORDER
IT IS HEREBY ORDERED that the Motion to Dismiss 27 is GRANTED. All claims
asserted by the following Plaintiffs are DISMISSED WITH PREJUDICE:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.

27

Gordon Beh
Jaclyn Wall
David Hughes
Will Camellot
Danielle Hansen
Janet Huggins
Feuur Kapp
Everett Miller
Kyle Miller
Deborah Nelson
Afualo Valeen
Karen Carlyle
Wayne Guss
Dale Tucker
Mary Maughan
Monty Reber
Matthew Reber
Gary Rasmussen
Scott Shumway
Ann Elwood
Sarah Moyes
Lee Geller
Lionel Berry
Valerie Johnson
Larry Johnson

26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.

Martina Conner
Patrick McClellan
Anne Garcia
Intermountain Copy
& Draft
Mac Loveridge
W. Mary R. Hanley
Linda A.W.
Monosson
Michael Rory
Mumms
Bank of Utah, Cust.
for Paul K Smith
Taunya Brewer
Richard Carlyle
Mary Ann Cockrell
Mary L. Cook
James Gilson
Sandy Gunther
Wendy Guss
Kathleen G. Hilton
Rebecca D. Reynold
Jami F. Hughes
Danielle Simpson
Cynthia Plymale

47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.

63.
64.
65.
66.

Josephine Tuckfield
Lisa K. Phan
Julie Ann Tucker
Brande Reber
Rose Community
Foundation
Jennifer Swensen
Chad Christensen
Tina Christensen
4 Bugs, LLC
Diane Gunter
Richard Turner
Shad Pyper
Glen Moore
Kenneth Hansen
Gloria Thacker
Michael Munns
[originally named as
“Mumms”]
Paul Christensen
Angela Burt
Oliver Burt
Marnell Andrus

Docket no. 224.
6

IT IS FURTHER ORDERED that the only Plaintiffs remaining in the case are:
1.
2.
3.
4.

Gerald Hunsacker (Hunsaker)
Covington Capital
B.F. (Bill) Baker
Phyllis Baker

Signed June 25, 2018.
BY THE COURT

________________________________________
David Nuffer
United States District Judge

7