Summary
treating motion to dismiss as an uncontested motion under similar circumstances
Summary of this case from Williams v. RobertsOpinion
Case No. 99-2498-JWL
July 18, 2001
MEMORANDUM AND ORDER
This matter is presently before the court on defendants' motion to dismiss plaintiff's complaint (doc. #10). For the reasons set forth below, defendant's motion is granted and plaintiff's case is dismissed in its entirety.
On June 15, 2001, defendants filed a motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Pursuant to Local Rule 6.1(e)(2), a party has twenty days to respond to a motion to dismiss or for summary judgment. Pursuant to Local Rule 7.4, "[i]f a respondent fails to file a response within the time required by Rule [6.1(e)], the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice."
On June 21, 2001, this court (in connection with an order lifting the stay previously entered) issued an order directing plaintiff to respond to defendants' motion to dismiss on or before July 9, 2001 ( i.e., the twenty-day period prescribed in Local Rule 6.1(e)(2)). In that order, the court also cautioned plaintiff that if he failed to respond to the motion to dismiss on or before July 9, 2001, then the "motion will be considered and decided as uncontested motion, and ordinarily will be granted without further notice pursuant to Local Rule 7.4."
Plaintiff failed to file a response to defendants' motion on or before July 9, 2001. Thus, the court considers defendants' motion as uncontested and, accordingly, grants the motion. In so holding, the court specifically concludes that certain aggravating factors present in this case outweigh the judicial system's strong predisposition to resolve cases on their merits. See Murray v. Archambo, 132 F.3d 609, 611 (10th Cir. 1998) (prior to outright dismissal for failure to comply with local court rules, court must consider the degree of actual prejudice to the defendant; the amount of interference with the judicial process; and the culpability of the litigant).
Specifically, the court notes that plaintiff, as of the date of this order, has still not responded to defendants' motion to dismiss nor has he contacted the court in any way regarding this case. Plaintiff's failure to respond to defendants' motion in any way and his failure to contact the court in any way demonstrates that his culpability is quite high. Compare id. (reversing district court's dismissal on uncontested motion where plaintiff mailed his response more than three days prior to the deadline, demonstrating "little or no culpability on his part in causing the delay") and Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988) (plaintiff herself was not guilty of any dereliction where plaintiff's counsel overlooked motion and therefore failed to respond, resulting in delay of almost two weeks but, once discovered, responded promptly). Moreover, in such circumstances, denying defendants' motion would prejudice defendant in terms of continued time spent and expenses incurred on a case in which the plaintiff has shown no interest even after ample notice from the court. Similarly, denying defendants' motion would interfere with the judicial process in terms of docket management and the need for a finality to litigation. In other words, the court should not have to continue to manage this case on its docket when plaintiff himself has taken no initiative to keep the case on the court's docket. Compare Murray, 132 F.3d at 611 (reversing district court's dismissal on uncontested motion where plaintiff's response to motion was received one day after the fifteen-day deadline and no prejudice to defendants could have resulted from this delay, nor could it have caused interference with the judicial process") and Hancock, 857 F.2d at 1396 (where plaintiff's counsel overlooked motion and therefore failed to respond, resulting in delay of almost two weeks but, once discovered, responded promptly, defendant would not have been prejudiced in any legal or equitable sense by court's consideration of response and any inconvenience to the court was not so severe a burden as to justify dismissal).
For the foregoing reasons, the court grants defendants' motion to dismiss. If plaintiff feels aggrieved by this ruling, he may file a motion to reconsider pursuant to Federal Rule of Civil Procedure 59(e) or 60. See D. Kan. Rule 7.3(a); Hancock, 857 F.2d at 1396 (court abused its discretion in denying plaintiff's motion for reconsideration following dismissal as uncontested motion).
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion to dismiss plaintiff's complaint (doc. #10) is granted.
IT IS SO ORDERED.