Hicks v. Centuri Construction Group et al

Filing 24

MEMORANDUM DECISION AND ORDER granting 22 Motion to Dismiss for Lack of Prosecution. Signed by Magistrate Judge Paul M. Warner on 1/18/2019. (las)

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

JEFFERY HICKS,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
Case No. 2:18-cv-00350-PMW
CENTURI CONSTRUCTION GROUP,
INC. and CANYON PIPELINE
CONSTRUCTION, INC.,
Defendants.

Chief Magistrate Judge Paul M. Warner

All parties in this case have consented to Chief Magistrate Judge Paul M. Warner
conducting all proceedings, including entry of final judgment, with appeal to the United States
Court of Appeals for the Tenth Circuit. 1 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Before the
court is Centuri Construction Group, Inc. and Canyon Pipeline Construction, Inc.’s (“Canyon”)
(collectively, “Defendants”) motion to dismiss.2 Plaintiff Jeffery Hicks (“Plaintiff”) has failed to
respond to Defendants’ motion, and the time for doing so has expired.
BACKGROUND
On April 27, 2018, Plaintiff filed his complaint against Defendants. 3 On July 25, 2018,
Plaintiff served his first set of discovery requests on Defendants. Canyon served its first set of

1

See docket no. 15.

2

See docket no. 22.

3

See docket no. 2.

discovery requests on Plaintiff on July 27, 2018. Defendants responded to Plaintiff’s discovery
requests, as required by the Federal Rules of Civil Procedure, on August 24, 2018. As of the date
of Defendants’ motion to dismiss, and despite numerous requests from Defendants that he do so,
Plaintiff had not submitted any response to Canyon’s discovery requests. Defendants have also
made numerous attempts to schedule Plaintiff’s deposition.
On October 12, 2018, Plaintiff’s counsel filed a motion to withdraw. 4 The court granted
that motion in an order dated October 15, 2018 (“October 15 Order”). 5 The October 15 Order
required Plaintiff or new counsel to “file a Notice of Appearance within twenty-one (21) days
after entry of” the October 15 Order. 6 Thus, Plaintiff was required to appear or appoint counsel
by November 5, 2018. The October 15 Order also warned Plaintiff that if he failed to comply
with its terms, he may be subject to sanction under Rule 16(f)(1) of the Federal Rules of Civil
Procedure, including, but not limited to, dismissal.7
On November 6, 2018, Defendants’ counsel sent a copy of the October 15 Order to
Plaintiff by e-mail and reminded him that he was now in violation of the October 15 Order. 8 In
that e-mail message, counsel also requested that Plaintiff (1) respond to Canyon’s discovery
requests by November 16, 2018, and (2) provide his availability to be deposed in January 2019. 9

4

See docket no. 18.

5

See docket no. 21.

6

Id.

7

See id.

8

See docket no. 22, Exhibit 1.

9

See id.
2

The following day, Plaintiff simply responded that he was “[i]n the process of retaining new
counsel[.]” 10
According to Defendants, as of the date of their motion to dismiss, Plaintiff had not
responded to Canyon’s discovery requests and had not contacted Defendants’ counsel.
Furthermore, as of the date of this order, Plaintiff has failed to comply with the October 15
Order.
ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails to
prosecute or to comply with . . . a court order, a defendant may move to dismiss the action or any
claim against it.” Fed. R. Civ. P. 41(b); see also Espinoza v. State Farm Fire, No.
1:13-CV-00057 DN, 2013 WL 11326736, at *1 (D. Utah Dec. 19, 2013) (granting motion to
dismiss filed 7 days after the 21-day deadline to appear or appoint counsel had expired and
dismissing complaint with prejudice).
Plaintiff has failed to submit responses to Canyon’s first set of discovery requests, despite
the fact that such responses were due long ago. Moreover, the October 15 Order required
Plaintiff or new counsel to “file a Notice of Appearance within twenty-one (21) days after entry
of” the October 15 Order. 11 The October 15 Order also warned Plaintiff that his failure to follow
its terms could result in dismissal of his case. 12 That 21-day deadline expired more than two

10

Id., Exhibit 2.

11

Docket no. 21.

12

See id.
3

months ago, and Plaintiff still has not filed the Notice of Appearance required by the October 15
Order. Finally, Plaintiff did not file any response to Defendants’ motion to dismiss, which
provides a basis for the court to grant the motion. See DUCivR 7-1(d) (“Failure to respond
timely to a motion, other than for summary judgment, may result in the court’s granting the
motion without further notice.”).
For those reasons, IT IS HEREBY ORDERED that Defendants’ motion to dismiss 13 is
GRANTED and that this action is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
DATED this 18th day of January, 2019.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

13

See docket no. 22.
4