Free Motion to Dismiss/Lack of Prosecution - District Court of Colorado - Colorado

Case 1:04-cv-01299-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1299-WDM-MJW ANTHONY SANDERS, Plaintiff(s), v. UNDER DEPUTY [sic] SHERIFF, et al., Defendant(s).

JOINT MOTION TO DISMISS WITH PREJUDICE PURSUANT TO FED. R. CIV. P. RULES 37(B)(2) AND 41(B)

Defendants Hooker, Hamilton, Chadwick, Smith, Johnson, and Williams, by and through counsel, Farry and Rector, LLP, and Defendant Martin, by and through his counsel, Hall & Evans, L.L.C., and pursuant to Fed. R. Civ. P. Rules 37(b)(2)(C) and 41(b), hereby submit this Motion to Dismiss with Prejudice pertaining to all elements of this matter and grounded on multiple failures by Plaintiff to comply with applicable Court Orders, and as grounds therefore, Defendants state as follows: INTRODUCTION Plaintiff Anthony Sanders brought this lawsuit against Defendants in June 2004, alleging various violations of his Constitutional rights. 2004. Plaintiff filed an Amended Complaint in August

Defendants Hooker, Hamilton, Chadwick, Smith, Johnson, and Williams answered the Defendant Martin filed his Answer to the

Amended Complaint on November 22, 2004. Amended Complaint on November 30, 2004.

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On January 7, 2005, the Court entered a Scheduling Order intended to govern the course of this action. In that Order, the discovery cut-off was established as August 8, 2005, with the deadline for dispositive motions set for September 8, 2005. On March 3, 2005, the Court issued a Show Cause Order because Plaintiff failed to make his required m onthly payment or to show cause why he lacked the assets and means to make the monthly payment. [ See Order, dated March 3, 2005, attached hereto as Exhibit A]. In its Order, the Court reminded Plaintiff that he was forewarned that the failure to pay or show cause why a payment was not made would result in the dismissal of this action. The Order further granted Plaintiff up to and including March 18, 2005, to respond to the Order or see his case dismissed. On March 7, 2005, the Magistrate Judge conducted a Status Conference on the matter and Plaintiff stated he would obtain counsel within thirty days. An additional Status Conference was then set for April 6, 2005. On April 6, 2005, a second Status Conference was convened. Plaintiff failed to phone in or otherwise attend and participate in that Conference. On being informed that Plaintiff's

deposition was set for April 27, 2005, the Court issued a Minute Order, dated April 7, 2005, ordering that Plaintiff attend his deposition as scheduled. [See Minute Order, dated April 7,

2005, attached hereto as Exhibit B; Notice of Deposition, dated March 28, 2005, attached hereto as Exhibit C]. Plaintiff failed to attend his deposition. [See Deposition Transcript, attached

hereto as Exhibit D]. On May 2, 2005, the Magistrate Judge issued his Recommendation of Dismissal pertaining to this matter, grounded on Plaintiff's failure to timely respond to the Court Order, dated March 3, 2005 respecting Plaintiff's failure to make monthly payments. [See

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Recommendation of Dismissal, dated April 29, 2005, attached hereto as Exhibit E].

Plaintiff

never objected to the Magistrate Judge Recommendation of Dismissal nor has he ever complied with the Show Cause Order and provided payment of or to show cause why he lacked the assets and means to make the monthly payment. On July 26, 2005, the District Court issued its Order on Recommendation of Magistrate Judge, denying the May 2, 2005 Recommendation based on the Magistrate Judge's failure to consider the relevant factors set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), for dismissal as a proper sanction. [ See Order on Recommendation of Magistrate Judge, dated July 26, 2005, attached hereto as Exhibit I]. Based on the all of the foregoing facts and as further substantiated below, Defendants now move the Court for an Order dismissing this matter with prejudice. STANDARD FOR CONSIDERATION OF DISMISSAL AS SANCTION The District Court possesses the discretion to dismiss a complaint with prejudice pursuant to Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure as a sanction for the intentional violation of a discovery order. See Ehrenhaus v. Reynolds, 965 F.2d 916, 918 (10th Cir. 1992). If the Court orders a party to appear for a scheduled deposition and the party fails to attend that deposition, it is within the Court's discretion to dismiss a case if, after considering all the relevant factors, it concludes that dismissal alone would satisfy the interests of justice. Id. Additionally, Rule 41(b) allows the dismissal of an action if a plaintiff fails to prosecute or to comply with a Court Order. Jones v. Thompson, 996 F.2d 261, 264 (10th Cir. 1993); see also Mobley v.

McCormick, 40 F.3d 337, 340 (10th Cir. 1994).

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The District Court's discretion to choose a sanction is limited in that the chosen sanction must be both "just" and "related to the particular `claim' which was at issue in the order to provide discovery." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 707 (1982). Before dismissing a matter as a just sanction, a court should ordinarily consider a number of factors, including: (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 Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1465 (10th Cir. 1988); see, also, Willner v. University of Kansas, 848 F.2d 1023, 1030 (10th Cir. 1988). "Only when the aggravating actors outweigh the judicial system's strong predisposition to resolve cases on their merits is dismissal an appropriate sanction." Meade v. Grubbs, 841 F.2d 1512, 1521 n.7 (10th Cir. 1988) (citations omitted). The factors enunciated as a means to evaluate conduct for the purpose of imposing sanctions do not constitute a rigid test; rather, they represent criteria for the district court to consider prior to imposing dismissal as a sanction. The court should ordinarily evaluate such

factors on the record. See Bud Brooks Trucking v. Bill Hodges Trucking, 909 F.2d 1437, 1439 (10th Cir. 1990). ARGUMENT PLAINTIFF'S FAILURE TO OBEY NUMEROUS COURT ORDERS REQUIRES THE DISMISSAL OF THIS ACTION AS A MATTER OF LAW Any review of the pertinent factors respecting the imposition of sanctions against a party involved in litigation reveals that Plaintiff's actions in this case necessitate a sanction of dismissal in this matter. Defendants and the Court spent substantial time and resources in this 4

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action and Plaintiff did no more than cause delay at every turn.

Plaintiff either hung up the

telephone before a hearing could be completed or simply did not appear to participate in hearings. [ See, e.g., Courtroom Minutes of March 7, 2005, attached hereto as Exhibit F (Plaintiff hangs up and causes a ten-minute delay in continuing hearing); Courtroom Minutes of April 6, 2005, attached hereto as Exhibit G (Plaintiff failed to appear for hearing); Courtroom Minutes of June 14, 2005, attached hereto as Exhibit H (Plaintiff hangs up the telephone and the Court cannot get him back on the line)]. Additionally, Plaintiff failed to comply with a Court Order to attend his deposition and, when confronted with his failure by the Court, offered no basis or explanation for his absence, establishing that his failure to comply with the Court's Order was willful. [See Courtroom Minutes of June 14, 2005, attached hereto as Exhibit H]. Plaintiff's

actions clearly prejudiced Defendants and interfered with the judicial process by forcing Defendants to expend resources, including the cost of preparing and attending the scheduled deposition and clogging the Court's docket with hearings Plaintiff failed to attend. See

Ehrenhaus, 965 F.2d at 921 (listed prejudice of Defendants and interference with the judicial process as two of the factors in determining whether dismissal as a sanction is appropriate). The pending deadlines for discovery and dispositive motions were rendered meaningless when Plaintiff failed to attend his deposition or Court hearings, establishing Plaintiff's willful disregard of Court directives and proceedings. All of these activities establish the necessity for dismissal of this action. Further, the record clearly establishes Plaintiff's culpability in regard to delay and mounting costs, including attorney fees, in this action. His failure to appear at his deposition and his conduct concerning numerous hearings provides the Court with no alternative but to assume

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that such failures were the result of Plaintiff's willful disregard for the judicial process and that there is no indication available that Plaintiff may alter his outlook or behavior in the future. See Ehrenhaus, 965 F.2d at 921 (listed culpability of Plaintiff as a factor in determining whether dismissal of action is appropriate sanction). Moreover, the Court informed Plaintiff that the

dismissal of this action was an available sanction if Plaintiff continued to hinder the management of the case by failing to comply with the judicial process. [ See, e.g., Court Order, dated March 3, 2005, attached hereto as Exhibit A (informing Plaintiff that failure to comply with the requirements of § 1915(b)(2) would result in dismissal)]. Finally, no lesser sanction than dismissal, such as an award of attorney fees, holds the potential for effective alteration of Plaintiff's conduct. Plaintiff lacks any obvious resources and

contends he is entitled to treatment as an impoverished person in connection with this matter. No economic sanction would result in any impact on Plaintiff for his culpability in wasting Defendants and the Court's time and resources. See Ehrenhaus, 965 F.2d at 921 (listed

effectiveness of lesser sanctions as a factor in determining whether dismissal of action is appropriate sanction). Plaintiff did not cooperate with the Court's process for paying his filing

fee or other expense associated with the commencement of this matter and never addressed his failure to do so in response to the Court's Show Cause Order. Such behavior reflects an

unwillingness to conform his behavior to the directives of the Court or reform past behavior in keeping with the Court's Orders. All of this history and these circumstances combine to reflect that the dismissal of this action is the only proper sanction for the misconduct of Plaintiff.

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COMPLIANCE WITH D.C.Colo.L.R. 7.1(A) Pursuant to D.C.Colo.L.R. 7.1(A), undersigned counsel is required to confer with Plaintiff for the purpose of determining whether the issue raised in this motion could be resolved without the filing of the motion. unavailable by telephone. this motion. CONCLUSION WHEREFORE, for all of the foregoing reasons, Defendants Hooker, Hamilton, Chadwick, Smith, Johnson, Williams, and Martin respectfully request that this Court dismiss all of the Plaintiff's claims in its entirety with prejudice, and for all other and further relief as this Court deems just and appropriate. Dated this 28th day of July 2005. Respectfully submitted, s / Edmund M. Kennedy Thomas J. Lyons, Esq. Edmund M. Kennedy, Esq. HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202 Phone: 303/628-3300 Fax # 303/293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANT MARTIN (Identified as UNDER DEPUTY SHERIFF) s/ Edward T. Farry _________________________ Edward T. Farry, Esq. FARRY AND RECTOR, L.L.P. 7 Plaintiff, who is pro se, is currently incarcerated and

Therefore, counsel cannot confer and is unaware of his position on

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131 South Weber Colorado Springs, Colorado 80903 Phone: (719) 578-2000 Fax: (719) 578-1794 [email protected] ATTORNEYS FOR DEFENDANTS HOOKER, HAMILTON, SMITH, JOHNSON, AND WILLIAMS

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 28th day of July, 2005, I electronically filed the foregoing JOINT MOTION TO DISMISS WITH PREJUDICE PURSUANT TO FED. R. CIV. P. RULES 37(B)(2) AND 41(B) with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: Edward T. Farry, Jr [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/EFC participants in the manner indicated by the non-participant's name: Anthony Tyrone Sanders CJC Criminal Justice Center 2739 East Las Vegas Colorado Springs, CO 80960-1522 s/ Marlene Wilson, secretary ______________________________ Thomas J. Lyons, Esq. Edmund M. Kennedy, Esq. HALL & EVANS, L.L.C. 1125 Seventeenth Street, Suite 600 Denver, Colorado 80202 Phone: 303/628-3300 Fax # 303/ 293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANT MARTIN (Identified as UNDER DEPUTY SHERIFF)

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