Amboh v. Kroger Co, The

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
KANDRA AMBOH,
Plaintiff,
v.
THE KROGER CO.,
Defendant.
REPORT AND RECOMMENDATION TO
GRANT DEFENDANT’S MOTION TO
DISMISS (DOC. NO. 62); DENY
MOTIONS FOR JUDGMENT ON THE
PLEADINGS (DOC. NOS. 40 & 41) AS
MOOT; AND DISMISS ACTION WITH
PREJUDICE PURSUANT TO RULE 41(b)
Case No. 2:24-cv-00023
Chief District Judge Jill N. Parrish
Magistrate Judge Daphne A. Oberg
Kandra Amboh, proceeding without an attorney, filed this employment
discrimination action against The Kroger Co.1 After Ms. Amboh failed to provide Rule
26 initial disclosures or respond to Kroger’s discovery requests, the court granted
Kroger’s motions to compel and ordered Ms. Amboh to provide disclosures and
responses by December 19, 2025.2 The court warned Ms. Amboh that if she failed to
comply, the case may be dismissed.3
1 (See Compl., Doc. No. 1).
2 (Order Granting Def.’s Mots. to Compel and Mot. for Sanctions for Failure to Appear at
Dep. (Nov. 11, 2025 Order), Doc. No. 53.)
33 (Id. at 7.)
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Kroger has now filed a motion to dismiss this action with prejudice, asserting Ms.
Amboh did not comply with the court’s discovery order.4 The deadline to respond to the
motion has passed,5 and Ms. Amboh has not filed a response. Where Ms. Amboh has
not refuted Kroger’s assertion that she failed to comply with the order, she was warned
such failure could result in dismissal, and her failure to comply prevents the case from
proceeding, the undersigned6 recommends the district judge grant Kroger’s motion and
dismiss this case with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure.
BACKGROUND
Ms. Amboh filed this case on January 11, 2024.7 After Kroger’s first motion to
dismiss was denied, Kroger filed an answer,8 and the court entered a scheduling order.9
Under that order, the parties’ Rule 26(a)(1) initial disclosures were due on May 22,
4 (Def. Kroger’s Mot. to Dismiss With Prejudice for Failure to Comply with 11/19/25
Order (Mot.), Doc. No. 62.)
5 See DUCivR 7-1(a)(4)(D)(ii) (providing a fourteen-day response deadline).
6 This case is referred to the undersigned magistrate judge under 28 U.S.C.
§ 636(b)(1)(B). (See Doc. No. 9.)
7 (Compl., Doc. No. 1.)
8 (Doc. No. 18.)
9 (Doc. No. 23.)
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2025.10 The fact discovery deadline was October 1, 2025, and the expert discovery
deadline was December 24, 2025.11
According to Kroger, Ms. Amboh did not provide initial disclosures by the May 22
deadline.12 Kroger sent Ms. Amboh a letter on June 3, notifying her the disclosures
were past due, and it sent a follow-up email on June 13 requesting to meet and
confer.13 Ms. Amboh did not respond to these communications.14 Kroger filed its
motion to compel Ms. Amboh to provide initial disclosures on June 23.15 Ms. Amboh did
not respond to the motion.
On July 3, 2025, Kroger sent interrogatories and requests for production of
documents to Ms. Amboh.16 Ms. Amboh did not respond to any of the discovery
requests by the August 4 deadline.17 Kroger sent Ms. Amboh a letter and a follow-up
10 (Id. at 2.)
11 (Id. at 4–5.)
12 (See Mot. to Compel Pl.’s Rule 26 Discls. 2, Doc. No. 37.)
13 (Exs. A & B to Mot. to Compel Pl.’s Rule 26 Discls., Doc. Nos. 37-1 & 37-2.)
14 (See Mot. to Compel Pl.’s Rule 26 Discls. 2, Doc. No. 37.)
15 (Doc. No. 37.)
16 (See Mot. to Compel Pl. to Respond to Written Disc. 2, Doc. No. 44; Ex. A to Mot. to
Compel Pl. to Respond to Written Disc., Doc. No. 44-1.)
17 (See Mot. to Compel Pl. to Respond to Written Disc. 2, Doc. No. 44.) Kroger
incorrectly states the response deadline was July 31, 2025 (twenty-eight days after the
discovery requests were served). But responses to interrogatories and requests for
production are due thirty days after the requests are served. Fed. R. Civ. P. 33(b)(2);
Fed. R. Civ. P. 34(b)(2)(A). Here, the response deadline was August 4, 2025, the first
non-weekend day after the thirty days expired. See Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the
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email later in August, but she did not respond.18 On September 4, Kroger filed its
motion to compel discovery responses.19 Ms. Amboh did not respond to the motion.
Kroger sent Ms. Amboh a notice of deposition by email and certified mail on
August 22, 2025, setting her deposition for September 10.20 Ms. Amboh did not appear
at the deposition.21 She also did not inform Kroger she could not attend or try to
reschedule.22 On September 15, Kroger filed its motion for attorney’s fees and court
reporter fees related to the deposition.23 The same day, Kroger moved to dismiss this
case for failure to prosecute or comply with the federal rules governing discovery.24 Ms.
Amboh did not respond to either motion.
last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end
of the next day that is not a Saturday, Sunday, or legal holiday.”). Kroger’s
misstatement of the deadline is immaterial, where Ms. Amboh still had not responded to
the discovery responses when the motion was filed on September 4. (See Mot. to
Compel Pl. to Respond to Written Disc. 2, Doc. No. 44.)
18 (See Mot. to Compel Pl. to Respond to Written Disc. 2, Doc. No. 44; Exs. B & C to
Mot. to Compel Pl. to Respond to Written Disc., Doc. Nos. 44-2 & 44-3.)
19 (Doc. No. 44.)
20 (See Mot. for Sanctions for Failure to Appear at Dep. 2, Doc. No. 48; Exs. A & B to
Mot. for Sanctions for Failure to Appear at Dep., Doc. Nos. 48-1 & 48-2.)
21 (See Mot. for Sanctions for Failure to Appear at Dep. 2, Doc. No. 48.)
22 (Id.)
23 (Doc. No. 48.)
24 (Def.’ Kroger’s Mot. to Dismiss With Prejudice for Failure to Prosecute, Doc. No. 49.)
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On November 19, 2025, the court granted Kroger’s motions to compel and its
motion for deposition-related fees.25 The court ordered Ms. Amboh to provide her Rule
26 initial disclosures and fully respond to Kroger’s first set of discovery requests by
December 19, 2025.26 The court also warned Mr. Amboh that if she did not provide
initial disclosures and discovery responses as ordered, “the case may be dismissed.”27
The same day, the undersigned recommended the district judge deny Kroger’s
motion to dismiss.28 The undersigned noted no prior discovery orders had been
entered, and the court had not previously warned Ms. Amboh that dismissal of the
action would be a likely sanction for noncompliance.29 The undersigned declined to
recommend “the extreme sanction of dismissing Ms. Amboh’s case without first ordering
her to comply with her discovery obligations and warning her that further noncompliance
may result in dismissal.”30 The undersigned also found dismissal for failure to
prosecute unwarranted where Ms. Amboh had otherwise continued to participate in the
case.31 This recommendation remains pending.
25 (Nov. 11, 2025 Order, Doc. No. 53.)
26 (Id. at 7.)
27 (Id.)
28 (R. & R. to Deny Def.’s Mot. to Dismiss for Failure to Prosecute, Doc. No. 54.)
29 (Id. at 8.)
30 (Id. at 9.)
31 (Id.)
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On December 23, 2025, Kroger filed the instant motion to dismiss, asserting Ms.
Amboh failed to comply with the court’s order to provide initial disclosures and discovery
responses by December 19.32 Kroger stated that as of the date the motion was filed,
Ms. Amboh had not provided initial disclosures or discovery responses.33 Kroger seeks
dismissal with prejudice.34 Ms. Amboh did not respond to the motion.
ANALYSIS
Under Rule 41(b) of the Federal Rules of Civil Procedure “[i]f the plaintiff fails to
prosecute or comply with [the federal] rules or a court order, a defendant may move to
dismiss the action or any claim against it.”35 When contemplating dismissal with
prejudice under this rule, the court must consider the five Ehrenhaus factors: (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.”36 In considering Kroger’s
motion, the court construes Ms. Amboh’s filings liberally, where she proceeds without
32 (Mot. 3, Doc. No. 62.)
33 (Id.)
34 (Id.)
35 Fed. R. Civ. P. 41(b).
36 Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal quotation marks
omitted).
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an attorney.37 Still, self-represented parties must follow the same procedural rules as
other litigants.38
As described above, Ms. Amboh did not provide initial disclosures, respond to
discovery requests, or attend her own deposition. In doing so, she failed to comply with
her obligations under the Federal Rules of Civil Procedure. First, under Rule 26(a)(1),
parties must provide certain initial disclosures to the opposing party, including
identifying witnesses and documents they may use to support their claims and providing
a computation of damages.39 Parties must provide these disclosures within fourteen
days of the parties’ Rule 26(f) conference or by a deadline set in a court order—in this
case, May 22, 2025.40 Second, Rules 33 and 34 require parties to respond to
interrogatories and requests for production of documents within thirty days.41 Third,
under Rule 30, a party must attend her own deposition after being served with proper
notice of it, and Rule 37 provides available sanctions for a party’s failure to attend—
including dismissal.42 Finally, even after the court ordered Ms. Amboh to provide initial
disclosures and discovery responses by December 19, 2025, Ms. Amboh failed to
comply with this order or provide any disclosures or discovery.
37 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
38 Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
39 Fed. R. Civ. P. 26(a)(1)(A)(i)–(iii).
40 See Fed. R. Civ. P. 26(a)(1)(C); (Scheduling Order, Doc. No. 23).
41 Fed. R. Civ. P. 33(b)(2); Fed. R. Civ. P. 34(b)(2)(A).
42 Fed. R. Civ. P. 30(b)(1); Fed. R. Civ. P. 37(d)(1)(A)(i), (d)(3).
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Turning to the Ehrenhaus factors, the court considers whether dismissal is
warranted based on Ms. Amboh’s failure to comply with the federal rules governing
discovery and the court’s November 19, 2025 order. As explained below, all five factors
favor dismissal.
Under the first factor, Ms. Amboh’s refusal to participate in discovery even after
being ordered to do so has severely prejudiced Kroger. Without initial disclosures and
discovery from Ms. Amboh, Kroger cannot fully investigate her claims or prepare its
defenses. Under the second factor, Ms. Amboh has also substantially interfered with
the judicial process. Indeed, her refusal to comply with discovery obligations and orders
prevents the case from proceeding. Under the third factor, Ms. Amboh is highly
culpable for this prejudice and interference, where she has offered no explanation or
excuse for her failure to comply with discovery obligations. Under the fourth factor, the
court previously warned Ms. Amboh that the case could be dismissed if she failed to
comply with the November 19, 2025 order. And under the fifth factor, lesser sanctions
were ineffective in obtaining compliance. Even after the court ordered Ms. Amboh to
comply and awarded deposition-related fees to Kroger, Ms. Amboh still has not
provided any initial disclosures or discovery responses.
In sum, all five Ehrenhaus factors weigh in favor of dismissal. No doubt,
dismissal is an “extreme sanction” which “should be used as a weapon of last, rather
than first, resort.”43 But dismissal is necessary here, where Ms. Amboh refuses to
43 Ehrenhaus, 965 F.2d at 920 (internal quotation marks omitted).
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participate in discovery even after being ordered to do so—and after being warned
failure to comply could result in dismissal.
For these reasons, the undersigned recommends the district judge grant Kroger’s
motion to dismiss44 and dismiss the case with prejudice pursuant to Rule 41(b). The
undersigned also recommends the district judge deny both parties’ motions for
judgment on the pleadings45 as moot.
RECOMMENDATION
The undersigned recommends the district judge (1) grant Kroger’s motion to
dismiss;46 (2) deny both parties’ motions for judgment on the pleadings47 as moot; and
(3) dismiss this case with prejudice pursuant to Rule 41(b) for failure to comply with the
federal rules and this court’s November 19, 2025 order.48 The parties have the right to
44 (Doc. No. 62.)
45 (Doc. Nos. 40 & 41.)
46 (Doc. No. 62.)
47 (Doc. Nos. 40 & 41.)
48 (Doc. No. 53.)
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object to this Report and Recommendation within fourteen days, and failure to object
may be considered a waiver of objections.49
DATED this 20th day of January, 2026.
BY THE COURT:
_____________________________
Daphne A. Oberg
United States Magistrate Judge
49 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b).
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