Opinion
Civil Action 1:22-cv-01938-CNS-SBP
10-19-2023
TANYA RIVERA, Plaintiff, v. UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO GRANT MOTION TO DISMISS (ECF NO. 40) IN PART
SUSAN PROSE UNITED STATES MAGISTRATE JUDGE
This matter is before the court on a motion to dismiss, ECF No. 40, in which Defendant University of Colorado Hospital Authority (“UCHA”) seeks dismissal of this action with prejudice for failure to prosecute and failure to comply with this court's orders and rules of procedure (the “Motion to Dismiss” or “Motion”). The Motion was referred to the undersigned Magistrate Judge pursuant to the Order of Reference dated May 2, 2023 (ECF No. 25) and Memorandum dated July 17, 2023 (ECF No. 41). For the reasons set forth below, this court respectfully RECOMMENDS that the pending Motion to Dismiss be granted in part and that the Complaint against UCHA (ECF No. 1) be dismissed without prejudice.
BACKGROUND
Plaintiff Tanya Rivera has been representing herself pro se since February 27, 2023. Before that time, the parties exchanged initial disclosures pursuant to Federal Rule of Civil Procedure 26. ECF No. 26 at 2. On January 25, 2023, UCHA issued a letter to counsel for Ms. Rivera informing him that Ms. Rivera's Rule 26 initial disclosures did not comply with Judge Charlotte N. Sweeney's Practice Standard 26.1A(a)-(c), which requires special disclosures in employment cases alleging adverse actions. Id. Neither Mr. Rivera nor her previously appointed counsel responded to UCHA's deficiency letter or supplemented Ms. Rivera's Rule 26 initial disclosures. Id. On February 10, 2023, UCHA also issued written discovery requests to Ms. Rivera in the form of interrogatories and requests for production of documents. ECF No. 26 at 2; ECF No. 26-3. Ms. Rivera failed to respond to the discovery requests by the March 13, 2023 deadline, and UCHA proceeded to file a motion to compel with the court (the “Motion to Compel”). ECF No. 26 at 2-3.
In its Motion to Compel, UCHA outlined its numerous efforts to confer with Ms. Rivera about her discovery obligations. Id. at 3. On May 22, 2023, the court ordered Ms. Rivera to file a response to the Motion to Compel by June 5, 2023. ECF No. 28. Ms. Rivera failed to do so. The court also set a hearing on the Motion to Compel for June 6, 2023. ECF No. 28. Ms. Rivera failed to attend. ECF No. 32. The court thereafter granted the Motion to Compel, requiring Ms. Rivera to respond to UCHA's written discovery requests and “[d]isclose all missing information required by Judge Sweeney's Initial Discovery Protocols” by June 27, 2023. ECF No. 33. The court warned Ms. Rivera that her failure to comply “may result in the imposition of further sanctions, including a recommendation that this case be dismissed pursuant to Federal Rule of Civil Procedure 37(b) and/or D.C.COLO.LCivR 41.1 for Plaintiff[']s failure to prosecute this case and to comply with orders of the Court.” Id. Ms. Rivera did not meet the court's new deadline.
Ms. Rivera instead filed a Motion for Extension of Time on June 26, 2023, one day before the new deadline. ECF No. 35. The motion was denied in part, as the court “decline[d] to allow Plaintiff to indefinitely prolong this litigation.” ECF No. 37 at 2. However, the court provided Ms. Rivera with an additional two weeks to respond to the discovery requests and to issue supplemental Rule 26 initial disclosures. Id. at 2-3. The court once again warned Ms. Rivera that failure to comply with the court order and to fulfill her discovery obligations could result in dismissal of her case. Id. at 3. The court further noted that “[n]o further extensions of time will be granted.” Id. On July 13, 2023, Ms. Rivera filed ten pages of documents entitled “Exhibits in Support of [ECF No.] 33 AMENDED ORDER” with the court. ECF No. 39.
UCHA filed its Motion to Dismiss on July 17, 2023. ECF No. 40. In the Motion, UCHA contends that Ms. Rivera has yet to respond to UCHA's written discovery requests, including the twenty (20) interrogatories propounded to her, or to supplement her Rule 26 initial disclosures. Mot. at 4. UCHA further contends that Ms. Rivera untimely filed the ten pages of documents on July 13, 2023, which UCHA believes is a “woefully deficient” production. Id. UCHA notes that Mr. Rivera's unnecessary delay has “significantly affected [its] ability to conduct thorough discovery,” noting that UCHA has not yet been able to schedule Ms. Rivera's deposition in this matter. Id. at 6.
In her opposition to the Motion (the “Opposition”), Ms. Rivera does not attempt to explain her failure to respond to UCHA's written discovery requests or her failure to provide supplemental Rule 26 initial disclosures. Rather, her sole argument is that she timely submitted the ten-page document production to UCHA on July 12, 2023, at 8:55 PM. ECF No. 42.
ANALYSIS
Federal Rule of Civil Procedure 37(b)(2)(A) provides the following potential sanctions for “fai[ure] to obey an order to provide or permit discovery”:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
Federal Rule of Civil Procedure 41(b) further provides that “[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.” The court considers the following factors in determining whether to dismiss an action for lack of prosecution or failure to comply with a court order: (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. Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir.1992). This court finds that each of the Ehrenhaus factors favors dismissal.
Prejudice to defendant.
Ms. Rivera's failure to comply with the court's orders has prevented UCHA from obtaining discovery necessary to the preparation of its defense. The discovery deadline in this matter was August 30, 2023, and yet UCHA had not received complete Rule 26 initial disclosures, did not receive responses to its written discovery requests, had only received ten pages of documents, and had yet to schedule Ms. Rivera's deposition as of that date. Further, UCHA has expended considerable time and resources simply attempting to communicate with Ms. Rivera regarding the requested discovery. In her Opposition, Ms. Rivera provided no explanation for her failure to comply and to provide all of the necessary discovery ordered by the court.
Interference with the judicial process.
Ms. Rivera's conduct has impeded the just, speedy, and inexpensive determination of this matter. This court, like UCHA, has invested time and resources overseeing the case and attempting to facilitate Ms. Rivera's compliance with her discovery obligations. Her failure to do so has required the court to review two separate motions and hold a hearing, at which she failed to appear. As such, Ms. Rivera has increased the workload of the court and interfered with the judicial process.
The culpability of plaintiff.
The record in this matter demonstrates that Ms. Rivera is responsible for the delays at issue. The court is mindful that Ms. Rivera does not have counsel, but “that does not excuse [her] conduct here.” Gasper v. Hartley, No. 08-cv-01749-LTB-KLM, 2009 WL 1139546, at *3 (D. Colo. Apr. 28, 2009) (dismissing case for pro se plaintiff's failure to prosecute) (internal citation omitted). Ms. Rivera has had numerous opportunities to fulfill her discovery obligations-months have passed since she first received UCHA's written discovery requests and its letter regarding deficiencies in her Rule 26 initial disclosures. Further, months have passed since this court first ordered her to respond or to supplement. It is unclear to the court whether Ms. Rivera provided her document production to UCHA on July 12, 2023, or on July 13, 2023. No matter. The court finds that the ten pages of documents filed by Ms. Rivera, even if timely, is a wholly insufficient response to UCHA's discovery requests. Further, even assuming that this production is complete-which does not appear to be the case-Ms. Rivera has still failed to supplement her Rule 26 initial disclosures or respond in writing to UCHA's discovery requests (which included twenty interrogatories). Her failure to do so is a direct violation of this court's June 6, 2023 and June 28, 2023 orders.
The court's warnings.
The court has warned Ms. Rivera on at least two occasions that her failure to comply with the court's orders could result in dismissal of this action. See ECF Nos. 33 & 37. The court also ensured that courtesy copies of the orders containing the warnings were separately mailed and emailed to Ms. Rivera. Id. There is no indication in the record that Ms. Rivera did not receive the court's orders. There are no returns of the mailings as undeliverable, and Ms. Rivera has chosen to appear and respond when convenient for her. See ECF Nos. 35 (Motion for Extension of Time) & 42 (Opposition to the Motion to Dismiss).
Efficacy of lesser sanctions.
UCHA specifically seeks dismissal with prejudice. Dismissal in itself “represents an extreme sanction appropriate only in cases of willful misconduct.” Ehrenhaus, 965 F.2d at 920. Further, “[b]ecause dismissal with prejudice defeats altogether a litigant's right to access the courts, it should be used as a weapon of last, rather than first, resort.” Id. (internal quotation marks omitted). In the cases reviewed by this court where the Tenth Circuit has expressly upheld dismissal with prejudice for failure to prosecute, there have been aggravating factors, such as: (1) multiple previously filed (and previously dismissed) actions involving the same conduct (Schroeder v. Southwest Airlines, 129 Fed.Appx. 481, 485 (10th Cir. 2005)), and (2) loss of evidence as a result of the discovery delays (Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1150 (10th Cir. 2007)). Such aggravating factors are not present here. The court therefore finds that dismissal with prejudice is “too harsh a remedy at this stage.” Rodriguez-Diaz v. Gallegos Masonry Inc., No. 12-cv-03015-MEH, 2013 WL 1397291, at *5 (Apr. 5, 2013). However, the court does not believe that any sanction less than dismissal would be effective. See Davis v. Fed. Bureau of Prisons, No. 15-cv-0884-WJM-NRN, 2018 WL 10466849, at *6 (D. Colo. Nov. 16, 2018) (finding that “monetary sanctions against Plaintiff would be meaningless” when there was no indication that plaintiff would be able to pay and further orders to compel “would likely be equally futile”). Ms. Rivera has “provided this Court with no reason to believe that [s]he would comply with another order compelling [her] response,” id., and dismissal is therefore appropriate.
CONCLUSION
Accordingly, this court respectfully RECOMMENDS that the Motion to Dismiss, ECF No. 40, be granted in part and that this case be dismissed without prejudice.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
A copy of this Recommendation shall be mailed to:
Tanya Rivera
6370 South Patsburg Court
Aurora, CO 80016
As a courtesy, a copy of this Recommendation also shall be emailed to Plaintiff at: tanriv4@gmail.com