Opinion
Case No. 01-2392-JAR
October 28, 2002
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Defendant The Burlington Northern and Santa Fe Railway Company (BNSF) filed a motion to dismiss this action with prejudice pursuant to Federal Rules of Civil Procedure 37(b)(2)(C) and 41(b) and for an award of attorney's fees. Plaintiff has not responded to the motion to dismiss.
Federal Rule of Civil Procedure 37(b)(2)(C) allows a court to issue "[a]n order . . . dismissing the action or proceeding or any part thereof" for a party's failure to provide or permit discovery, including failure to attend their own deposition. Rule 41(b) allows a court to dismiss a claim "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court." Dismissal with prejudice, however, is an extreme sanction and the Tenth Circuit cautions district courts to consider certain factors before choosing dismissal as a just sanction. These factors include: "(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 Fed.R.Civ.P. 37(d).
Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993); Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992).
Thompson, 996 F.2d at 264 (citing Ehrenhaus, 965 F.2d at 921).
ANALYSIS
Plaintiff filed this action on August 8, 2001 alleging race discrimination and retaliation in violation of Title VII and 42 U.S.C. § 1981. On July 15, 2002, Magistrate Judge James P. O'Hara issued an Order to Show Cause, in writing, before July 31, 2002 why sanctions should not be imposed against the plaintiff and/or plaintiff's counsel for disregarding the court's previous order requiring Plaintiff to submit a good faith settlement proposal by May 31, 2002, and a confidential statement regarding settlement efforts by July 8, 2002. To date, Plaintiff has not responded to the Order to Show Cause. Nor has Plaintiff responded to Defendant's discovery requests served on July 13, 2002, or Defendant's Notice of Deposition of July 17, 2002. And, Plaintiff failed to appear for deposition on August 1, 2002. On August 2, 2002, Defendant filed this motion to dismiss the case. Plaintiff has not responded.After due consideration of the factors outlined by the Tenth Circuit, the Court concludes that since Plaintiff filed this lawsuit some 14 months ago, plaintiff has utterly failed to prosecute this action. He has failed to comply with early discovery procedures, failed to respond to discovery requests, failed to appear for his deposition, and failed to respond to Judge O'Hara's order to show cause concerning some of his failures. Plaintiff has interfered with the judicial process by his inaction, all to Defendant's prejudice, as Defendant has expended time and money seeking discovery in this lawsuit. Plaintiff ignored Judge O'Hara's Order to Show Cause why he should not be sanctioned. And, now that Plaintiff is on notice that Defendant is seeking the ultimate sanction, dismissal with prejudice, Plaintiff still fails to respond. It is obvious to the Court that any lesser sanction would have no effect on Plaintiff.
IT IS THEREFORE ORDERED THAT THIS CASE IS DISMISSED WITH PREJUDICE.
IT IS ORDERED THAT DEFENDANT WILL BE GRANTED REASONABLE ATTORNEYS FEES AND COSTS.
IT IS FURTHER ORDERED THAT DEFENDANT SUBMIT A FEE STATEMENT AND BILL OF COSTS FOR THE COURT'S REVIEW.
IT IS SO ORDERED.