Opinion
Civil Action 23-cv-02827-STV
11-30-2023
BERTRAM ERNEST BENNETT JR., Plaintiff, v. ASM GLOBAL/SMG, Defendant.
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This civil action is before the Court upon Plaintiff's failure to respond to this Court's Order to Show Cause, issued on October 31, 2023. [#10] For the following reasons, the Court ORDERS that this matter be reassigned to a District Judge and respectfully RECOMMENDS that this case be DISMISSED WITH PREJUDICE for failure to comply with Fed.R.Civ.P. 8 and failure to comply with an order from the Court.
Plaintiff, proceeding pro se, initiated this lawsuit on August 18, 2023 by filing a Complaint in the Denver District Court. [#5] Defendant removed the matter to federal court on the basis of diversity jurisdiction on October 27, 2023. [#1]
On October 31, 2023, the Court issued an Order to Show Cause. [#10] Upon review, the Court determined that the Complaint was deficient because it fails to comply with the pleading requirements established by Federal Rule of Civil Procedure 8. [Id.] In particular, the Court noted that the Complaint rests solely on labels of claims, with no relevant supporting factual allegations whatsoever. [Id. at 3]
Accordingly, the Court ordered that, on or before November 28, 2023, Plaintiff either: (1) file an amended complaint that complies with the Federal Rules of Civil Procedure and sets forth the factual bases for the claims asserted, or (2) otherwise show cause, in writing, why the Complaint should not be dismissed for failure to comply with the pleading requirements of Federal Rule of Civil Procedure 8. [Id. at 3] Plaintiff was warned that a failure to timely respond may result in a recommendation that this action be dismissed. [Id.] Plaintiff did not file a response or an amended complaint. Based upon Plaintiff's failures to comply with the Court's order and the Federal Rules of Civil Procedure, the Court finds it appropriate to enter this recommendation of dismissal.
I. FEDERAL RULE OF CIVIL PROCEDURE 8
Pursuant to Federal Rule of Civil Procedure 8(a):
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
“The twin purposes of a complaint are to give the opposing parties fair notice of the basis for the claims against them so that they may respond and to allow the Court to conclude that the allegations, if proven, show that the plaintiff is entitled to relief.” Mwangi v. Norman, No. 16-cv-0002-GPG, 2016 WL 153220, at *1 (D. Colo. Jan. 13, 2016). Accordingly, to state a claim in federal court, a plaintiff's complaint must explain: (1) “what each defendant did to him”; (2) “when the defendant did it”; (3) “how the defendant's action harmed” the plaintiff; and, (3) “what specific legal right the plaintiff believes [each] defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). “A pleading that offers “labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). Rule 8 applies to actions removed from state court. Fed.R.Civ.P. 81(c)(1).
As explained in this Court's Order to Show Cause, the Complaint fails to contain any “statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Complaint names as defendant “ASM Global/SMG,” and checks two boxes that “the Defendant company does business in Denver” and “the actions took place in Denver.” [#5 at 5-6] It asserts three claims: “Discrimination,” “Retaliation,” and “Pendent Claim Wrongful Discharge/Suspension.” [Id. at 7] Under a section labeled “Facts,” the Complaint states “See Attachment.” [Id. at 8] There is, however, no attachment, nor does the Complaint contain factual allegations elsewhere. [See generally #5] It therefore rests solely on labels of claims, with no relevant supporting factual allegations whatsoever. This plainly fails to meet the basic pleading requirements of Rule 8. See Iqbal, 556 U.S. at 678; Nasious, 492 F.3d at 1163.
II. FEDERAL RULE OF CIVIL PROCEDURE 41
Pursuant to Federal Rule of Civil Procedure 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Rule 41(b) “has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or comply with the rules of civil procedure or the court's orders.” Vanmaanen v. N. Plains Trucking, No. 16-cv-00640-MEH, 2017 WL 491188, at *2 (D. Colo. Feb. 7, 2017) (citing Link v. Wabash R. Co., 370 U.S. 616, 630- 31 (1962)). Moreover, “[i]f a complaint fails to meet the[] basic pleading requirements, a district court may dismiss the action sua sponte for failure to comply with Rule 8.” Rodriguez v. Nationwide Homes, Inc., 756 Fed.Appx. 782, 785 (10th Cir. 2018)); see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007) (“a failure to satisfy Rule 8 can supply a basis for dismissal: Rule 41(b) specifically authorizes a district court to dismiss an action for failing to comply with any aspect of the Federal Rules of Civil Procedure.”) D.C.COLO.LCivR 41.1 provides that:
A judicial officer may issue an order to show cause why a case should not be dismissed for failure to prosecute or failure to comply with these rules, the Federal Rules of Civil Procedure, or a court order. If good cause is not shown, a district judge or a magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice.
In considering dismissal with prejudice under Rule 41(b), courts in the Tenth Circuit have considered the following five factors, initially set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992): (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. See Quarrie v. N.M. Inst. of Mining & Tech., 621 Fed. App'x 928, 931 (10th Cir. 2015); Nasious, 492 F.3d at 1162 (holding that a court must consider the Ehrenhaus factors when dismissing an action with prejudice for failure to comply with Rule 8). The Court finds that all of these factors weigh in favor of dismissal.
First, Defendant has suffered actual prejudice as a result of Plaintiff's failures to adhere to the pleading rules set forth by the Federal Rules of Civil Procedure, address the deficiencies when given the opportunity to do so, and comply with Court orders. Specifically, Defendant has been subjected to a lawsuit seeking an indeterminate amount of damageswith no asserted factual basis for the claims, and continues to experience delay and uncertainty in the resolution of the uncertain claims against them. Second, the amount of interference with the judicial process is significant as Plaintiff has failed to comply with the Court's order to address the deficiencies identified in its Order to Show Cause. Based on this failure, the Court is satisfied that further opportunities for Plaintiff to amend his Complaint would be met with the same disregard and only further interfere with the judicial process. Third, Plaintiff appears to be solely responsible for his failure to comply with the Federal Rules of Civil Procedure and this Court's orders, and has ignored the opportunity given by the Court to show cause for his failures or amend his Complaint. Fourth, the Court previously warned Plaintiff that his failure to comply with the duly issued Order to Show Cause may result in a recommendation that this action be dismissed. [#10 at 7] Finally, there does not appear to be any lesser sanction that would be effective, as Plaintiff has been unresponsive to the order from this Court instructing Plaintiff to address the Complaint's deficiencies.
As its request for relief, the Complaint seeks “monetary compensation.” [#5 at 10]
Accordingly, for the foregoing reasons, the Court ORDERS that this matter be reassigned to a District Judge, and respectfully RECOMMENDS that this action be DISMISSED WITH PREJUDICE for failure to comply with Fed.R.Civ.P. 8 and failure to comply with an order from the Court. The Clerk of Court is instructed to mail a copy of this Recommendation to Plaintiff.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 57980 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).