Opinion
Case No. 01-2378-JWL.
October 16, 2001
MEMORANDUM AND ORDER
This matter is presently before the court on respondent's motion to dismiss petitioner's complaint (doc. #3). For the reasons set forth below, respondent's motion is granted and petitioner's case is dismissed in its entirety.
On August 22, 2001, respondent filed a motion to dismiss petitioner's complaint. 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 September 26, 2001, after petitioner had not responded to respondent's motion to dismiss, this court issued an order directing petitioner to respond on or before October 5, 2001. In that order, the court also cautioned petitioner that if he failed to respond to the motion to dismiss on or before October 5, 2001, then the "motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice pursuant to Local Rule 7.4."
Petitioner failed to file a response to respondent's motion on or before October 5, 2001. Thus, the court considers respondent's 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 respondent; the amount of interference with the judicial process; and the culpability of the litigant).
Specifically, the court notes that petitioner, as of the date of this order, has still not responded to respondent's motion to dismiss nor has he contacted the court in any way regarding this case. Petitioner's failure to respond to respondent's 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 petitioner 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) (petitioner herself was not guilty of any dereliction where petitioner'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 respondent's motion would prejudice respondent in terms of continued time spent and expenses incurred on a case in which the petitioner has shown no interest even after ample notice from the court. Similarly, denying respondent's 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 petitioner 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 petitioner's response to motion was received one day after the fifteen-day deadline and no prejudice to respondents could have resulted from this delay, nor could it have caused interference with the judicial process) and Hancock, 857 F.2d at 1396 (where petitioner's counsel overlooked motion and, therefore, failed to respond, resulting in delay of almost two weeks but, once discovered, responded promptly, respondent 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 respondent's motion to dismiss. If petitioner 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 petitioner's motion for reconsideration following dismissal as uncontested motion).
IT IS THEREFORE ORDERED BY THE COURT THAT respondent's motion to dismiss petitioner's complaint (doc. #3) is granted.
IT IS SO ORDERED.