Opinion
Case No. 2:02CV122
December 8, 2003
ORDER
On October 20, 2003, this Court issued an Order to show cause why this case should not be dismissed for failure to prosecute. Plaintiff was ordered to respond in writing within ten days of the date the order was issued to inform the Court of the status of the case and her intention to proceed. Plaintiff was advised in the Order to show cause that failure to respond within ten days would result in dismissal of her case. Plaintiff has failed to file any response to this Court's October 20, 2003 Order to show cause.
The Court issued the Order to show cause for several reasons. First, plaintiff failed to oppose defendant's September 15, 2003 motion for summary judgment within the thirty days required by DUCivR 56-1(b). Indeed, plaintiff has still not opposed defendant's motion for summary judgment. Plaintiffs failure to respond alone could result in the granting of defendant's motion for summary judgment. DUCivR 7-1(d). Second, the fact discovery deadline passed on September 30, 2003 and plaintiff has been unavailable for deposition despite defendant's repeated efforts to contact plaintiffs counsel to schedule a deposition. Additionally, the time to designate an expert has expired and plaintiff has failed to designate an expert as required by Kidd v. Taos Ski valley, Inc., 88 F.3d 848, 853 (10th Cir. 1997). Finally, plaintiff has failed to respond to any written discovery.
On October 31, 2003, plaintiffs counsel mailed a four sentence letter to the Court instructing the Court that he would be unavailable November 18, 2003 through November 28, 2003; and December 16, 2003 through January 8, 2004. This letter-which fails to even address the Order to show cause-is the only written correspondence this Court has received from plaintiff, despite the Court's repeated attempts to elicit a response from plaintiff.
Pursuant to Federal Rules of Civil Procedure, an action can be dismissed "upon order of the court and upon such terms and conditions as the court deems proper." Fed.R.Civ.Pro. 41(a)(2). "A trial court may . . . on its own motion, dismiss an action for failure of the plaintiff to prosecute [the action] with reasonable diligence." SEC v. Power Resources Corp., 495 F.2d 297, 298 (10th Cir. 1974). "[T]he power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts." Link v. Wabash R.R. Co., 370 U.S. 626, 629(1962).
Plaintiff has engaged in a pattern of dilatory conduct likely to result in undue delay. Plaintiff failed to oppose defendant's motion for summary judgment, Plaintiff has not been available for deposition despite defendant's repeated efforts to schedule plaintiffs deposition. Plaintiff failed to designate an expert witness or answer defendant's written discovery. Plaintiff failed to respond in writing to the Court's Order to show cause. Plaintiff has failed to set forth any reason, let alone a compelling reason, as to why the Court should not dismiss this case for failure to prosecute. Therefore, the Court finds that the plaintiff failed to diligently prosecute the case. Accordingly, this case is dismissed with prejudice, IT IS SO ORDERED.