Opinion
Case No. 2:01-CV-434.
June 28, 2004
ORDER GRANTING MOTION TO PRECLUDE USE OF EVIDENCE AND WITNESSES AND FOR SANCTIONS AND DISMISSING CASE.
For the reasons stated by the court at the hearing held on May 13, 2004, the court hereby dismisses all remaining claims and orders this case closed. At that hearing, the court found that the Plaintiff's failure to conduct any discovery in this matter and failure to comply with this court's scheduling order was without substantial justification. As such, pursuant to Rule 37 of the Federal Rules of Civil Procedure, which states that a party "is not . . . permitted to use as evidence at a trial . . . any witnesses or information not so disclosed," the court excluded Plaintiff's evidence. Because the Defendant had no remaining evidence to submit to the jury the court dismissed the case. The court also found that the Plaintiff's failure to prosecute the case for nearly 2½ years, a finding which Plaintiff did not deny, also provided grounds for dismissal.
Fed.R.Civ.P. 37(c)(1); see also Woodworker's Supply, Inc. v. Principal Mutual Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999) (setting forth factors for determining whether failure to comply with discovery requirements of Rule 26 was substantially justified or harmless).
IT IS HEREBY ORDERED that Defendant's Motion To Preclude Use Of Evidence And Witnesses And For Sanctions is GRANTED (#61-2). IT IS FURTHER ORDERED that because Plaintiff has no evidence to submit at trial, and because of Plaintiff's failure to prosecute the case for a period of more than two years, the case is DISMISSED with prejudice.