Crittendon-Morman v. Lara et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 23–cv–02630–CNS–MDB
MICHAEL CRITTENDON-MORMAN,
Plaintiff,
v.
JEFFERY SCHUELKE, a Manitou Springs Police Officer, in his individual capacity, and
ANTHONY LARA, a Manitou Springs Police Officer, in his individual capacity,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Maritza Dominguez Braswell
This matter is before the Court on Defendants’ Motion to Dismiss for Lack of
Prosecution. ([“Motion to Dismiss” or “Motion”], Doc. No. 24.) Plaintiff filed a Response to the
Motion, to which Defendants have replied. ([“Response”], Doc. No. 26; [“Reply”], Doc. No. 29.)
After reviewing the Motion, briefing, and relevant law, the Court RECOMMENDS that the
Motion to Dismiss be GRANTED.
BACKGROUND
Plaintiff initiated this action on February 21, 2023 in the El Paso County District Court,
and soon thereafter voluntarily dismissed the case. He then filed his Complaint on October 10,
2023, alleging Defendants wrongfully arrested Plaintiff and searched his belongings, which led
to his incarceration. (See generally Doc. No. 1.) Plaintiff brings his claims pursuant to 28 U.S.C.
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§ 1983 and Colo. Rev. State. § 13-21-131, alleging unlawful seizure in violation of the Fourth
Amendment, racial discrimination in violation of the Fourteenth Amendment, and deprivation of
rights under Colorado state law. (See generally id.) Though criminal proceedings were initiated
against Plaintiff for the narcotics found in his belongings, that case was dismissed based on a
judicial finding that Defendants’ arrest and seizure of Plaintiff violated his constitutional rights.
(Id. at ¶ 20.)
In the instant case, the parties began discovery on January 15, 2024, and Defendants
scheduled Plaintiff’s deposition for May 21, 2024. (Doc. No. 24 at ¶ ¶ 3; 6.) Plaintiff’s counsel
notified Defendants the day before the deposition that he was unable to locate Plaintiff, and the
Court granted the parties additional time to reschedule the deposition. (Id. at ¶ ¶ 7-9.) Though the
parties have made several efforts to communicate with Plaintiff and schedule his deposition, they
have been unsuccessful. (See id. at ¶ ¶ 11-13.) On August 2, 2024, Defendants informed
Plaintiff’s counsel that they would file a motion to dismiss for failure to prosecute if alternative
dates for the deposition were not provided by August 12, 2024, and when no such dates were
provided, Defendants filed the instant Motion. (Id. at ¶ ¶ 14-15.)
During the October 1, 2024 Status Conference, the Court ordered Plaintiff to sit for
deposition and directed Plaintiff’s counsel to file a Notice to the Court by November 1, 2024,
reporting whether Plaintiff has been located and whether his deposition has occurred or is soon
to occur. (Doc. No. 31.) The Court warned counsel that Plaintiff’s failure to comply with the
Court’s order to sit for deposition could result in the dismissal of this case. (Id.) On November 1,
2024, Plaintiff’s counsel informed the Court that Plaintiff has not sat for his deposition, and that
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none has been scheduled. (Doc. No. 34.) Accordingly, the Court now considers whether to
recommend dismissal of Plaintiff’s case for failure to prosecute.
LEGAL STANDARD
Rule 41(b) provides, in part, “[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.” Fed.
R. Civ. P. 41(b). Courts consider the five Ehrenhaus v. Reynolds factors when determining
whether to dismiss a case under Rule 41(b): (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.” 965 F.2d 916, 921 (10th
Cir. 1992); see also Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994) (directing courts to
apply Ehrenhaus factors in analyzing Rule 41(b) involuntary dismissals). Dismissal is an
appropriate sanction if, after considering all the factors, the court “concludes that dismissal alone
would satisfy the interests of justice.” Ehrenhaus, 965 F.2d at 921.
Rule 41(b) dismissal “operates as an adjudication on the merits,” thus, dismissal is with
prejudice, unless “the dismissal order states otherwise.” Fed. R. Civ. P. 41(b); 9 Charles Alan
Wright & Arthur R. Miller, Fed. Prac. and Proc. § 2372 (4th ed. 2023). But see Ehrenhaus, 965
F.2d at 920 (saying dismissal with prejudice “represents an extreme sanction appropriate only in
cases of willful misconduct,” and should be used “as a weapon of last, rather than first, resort”).
ANALYSIS
Defendants argue that nearly every Ehrenhaus factor weighs in favor of dismissing the
case. (See generally Doc. No. 24.) The Court agrees.
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Prejudice to Defendants
As to the first factor, courts have found prejudice where a party is “causing delay and
mounting attorney’s fees.” Ehrenhaus, 965 F.2d at 921; see also Jones v. Thompson, 996 F.2d
261, 264 (10th Cir. 1993) (“Plaintiffs have prejudiced the [d]efendants by causing delay and
mounting attorney’s fees.”). Prejudice may also exist where a party’s conduct “create[s]
uncertainty around defense strategy.” Ellis-Hall Consultants, LLC v. Hofmann, No. 20-4040,
2022 WL 3972093, at *4 (10th Cir. Sept. 1, 2022). Moreover, “a lawsuit containing . . . serious
and stigmatizing allegations” may cause prejudice by “damage[ing] the reputation of those
accused so long as the lawsuit remains pending.” Ehrenhaus, 965 F.2d at 921.
Here, the record reveals Defendants have suffered prejudice as a result of Plaintiff’s
absence. First, Plaintiff’s failure to appear for deposition has increased Defendants’ costs and
delayed proceedings. This matter has been before the Court for over a year, and Defendants have
been attempting to conduct Plaintiff’s deposition for over eight months. (Doc. No. 25 at 5.)
Defendants have expended significant resources in anticipation of the deposition, including
drafting multiple notices, rescheduling court reporters, preparing questions, drafting motions to
extend discovery and dispositive motions deadlines, and more. (Doc. No. 24 at 5.) This weighs in
favor of finding Defendants have suffered prejudice. See, e.g, Alexander v. Indep. Cap.
Recovery, LLC, No. 1:22-cv-01405-LTB-SP, 2023 WL 4893175, at *3 (D. Colo. June 22, 2023),
report and recommendation adopted, No. 22-cv-01405-LTB-SP, 2023 WL 5934536 (D. Colo.
Aug. 8, 2023) (finding prejudice where plaintiff’s “failure to make herself available for a
deposition forced [d]efendant’s counsel to spend significant time on . . . noticing the deposition
twice; sending multiple communications; and requesting, briefing, and attending [a] discovery
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hearing”); Valdez v. Liberty Mutual Insurance Company, No. 19-cv-01382-PAB-KMT, 2020
WL 4882436, at *3 (D. Colo. Aug. 19, 2020) (finding prejudice where case was filed over a year
ago, and discovery had not been completed due to plaintiff’s failure to attend a deposition).
Second, Plaintiff’s absence has created uncertainty about how Defendants should litigate
the case. (Doc. No. 24 at 4-5; see also Ellis-Hall Consultants, 2022 WL 3972093, at *4 (finding
prejudice where “plaintiffs’ conduct . . . created uncertainty about how defendants would litigate
the case.”).) Plaintiff’s counsel has filed a Motion for Partial Summary Judgment (Doc. No. 30).
However, without Plaintiff’s deposition, Defendants are unable to understand the full scope of
Plaintiff’s claims, and thus unable to respond to Plaintiff’s Motion or argue for dismissal on
summary judgment. (See Doc. No. 24 at 6.) This leaves the case at a standstill until Plaintiff
appears.
Finally, Defendants contend they are prejudiced by the stigmatizing allegations that
remain pending against them. (Doc. No. 29 at 2.) Courts have noted that allegations can be a
“cloud on one’s reputation,” and unresolved charges can cause “ongoing reputational harm.”
Swan Glob. Invs., LLC v. Young, No. 18-cv-03124-CMA-NRN, 2020 WL 5204293, at *6 (D.
Colo. June 5, 2020), report and recommendation adopted, No. 18-CV-03124-CMA-NRN, 2020
WL 9432880 (D. Colo. Dec. 10, 2020). “Under such circumstances, being able to defend oneself
in a timely manner and seek to clear one’s name is an important part of the judicial process.” Id.
And while courts typically find prejudice where a party is charged with fraud, breach of fiduciary
duty, or theft of trade secrets, see, e.g., Ehrenhaus, 965 F.2d at 921 (“[A]llegations of fraud
damages the reputation of those accused so long as the lawsuit remains pending”); Swan Glob.
Invs., 2020 WL 5204293, at *6 (noting allegations of fraud, breach of fiduciary duty, and theft of
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trade secrets can be especially damaging to one’s reputation), allegations of unlawful seizure and
racial discrimination against police officers, like the two Defendants here, can also be damaging.
Plaintiff’s counsel argues that Defendants have not suffered prejudice because “Plaintiff’s
testimony is immaterial to a determination of liability,” (Doc. No. 26 at 3-4), but he does not
respond to Defendants’ arguments that Plaintiff’s absence has resulted in increased costs,
delayed proceedings, uncertainty, and harm to Defendants’ reputations. Even if Plaintiff’s
counsel was correct to say Plaintiff’s testimony is immaterial to a determination of liability (an
assertion the Court finds unpersuasive), it is indisputable that Plaintiff’s absence has prejudiced
Defendants. Thus, the first Ehrenhaus factor weighs in favor of dismissal.
Interference with Judicial Process
Causing a district court to expend unnecessary resources typically satisfies the second
Ehrenhaus factor. Ellis-Hall Consultants, 2022 WL 3972093, at *5. Here, Plaintiff’s failure to
appear for deposition has caused the Court to expend unnecessary time and resources reviewing
filings and conducting hearings. (See, e.g., Docs. No. 17; 20 (motions to extend discovery and
dispositive motions deadlines); Docs. No. 31; 35 (motions to extend deadline to file a response to
Plaintiff’s summary judgment motion); Doc. No. 32 (status conference addressing Plaintiff’s
absence).)
Even if Plaintiff’s failure to appear for deposition had not directly caused the Court to
expend resources, it can still form the basis for interference with judicial process. See, e.g., Smith
v. McKune, 345 F. App’x 317, 318 (10th Cir. 2009) (finding interference with judicial process
where Plaintiff “among other things, twice fail[ed] to appear for a scheduled deposition”); Swan
Glob. Invs., 2020 WL 5204293, at *7 (finding judicial interference where the court “has been
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forced to expend time and resources (including writing detailed opinions on [defendant’s]
Motion to Dismiss) on a case that [plaintiff] seems to have little interest in pursuing.”). This
factor also weighs in favor of dismissal.
Plaintiff’s Culpability
As to the third factor, establishing culpability requires willfulness, bad faith, or some
fault, rather than a simple inability to comply. Lee v. Max Int’l, LLC, 638 F.3d 1318, 1321 (10th
Cir. 2011). To determine whether a failure to comply with an order is willful, courts look to
whether there is an “intentional failure[,] as distinguished from involuntary compliance.” In Re
Standards Metals Corp., 817 F.2d 625, 628-29 (10th Cir. 1987) (citation omitted). A showing of
wrongful intent is not required. Id.
Here, Plaintiff has failed to appear for his depositions without explanation and has made
no recent efforts to participate in this matter. (Doc. No. 24 at 7.) Plaintiff’s counsel contends
“[b]ecause Plaintiff is transient, he does not have the resources to maintain consistent lines of
communication, and thus is not culpable,” and notes “efforts to locate Plaintiff are ongoing.”
(Doc. No. 26 at 5.) But Plaintiff was capable of initiating the suit, and the record reveals Plaintiff
was able to communicate with counsel at least through February 2024, when he submitted
discovery responses. (Doc. No. 29 at 4.) If Plaintiff’s situation has changed since then, he has a
duty to inform the Court and his counsel of such. See Faircloth v. Hickenlooper, 758 F. App’x
659, 662 (10th Cir. 2018) (finding culpability where plaintiff failed to update the court with his
current address). Thus, while the Court is sympathetic to Plaintiff’s transient status, his failures
to sit for deposition and communicate his whereabouts, appear to be closer to an “intentional
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failure.” The culpability factor therefore weighs slightly in favor of dismissal. In Re Standards
Metals, 817 F.2d at 628-29.
Notice of Potential Dismissal
During the October 1, 2024, Status Conference, the Court expressly warned Plaintiff that
failure to comply with the Court’s order to sit for deposition could result in the dismissal of this
case. (Doc. No. 31.) Though Plaintiff himself was not present during the hearing, his counsel was
present. Again, Plaintiff’s transient status plays a role in the weighing of this factor, but for the
reasons set forth above, it weighs in favor of dismissal, even if only slightly.
Availability of Lesser Sanctions
Finally, “the sanction of dismissal is not ordinarily warranted if lesser sanctions would be
effective.” Ehrenhaus, 965 F.2d at 922. Here, the Court finds lesser sanctions would not be
effective. While Fed. R. Civ. P. 37(b) provides several possible sanctions for violating a
discovery order, most of these sanctions would be ineffective, given Plaintiff is nowhere to be
found. See Faircloth, 758 F. App’x at 662 (concluding “no lesser sanction would have been
effective” because the court was “unable to receive a response from [plaintiff] and had no way of
learning where [he] was”); see also Jones, 996 F.2d at 265-66 (finding lesser sanctions
ineffective where plaintiffs “repeatedly ignored court orders to submit themselves for
depositions”); Ellis-Hall Consultants, 2022 WL 3972093, at *7 (finding lesser sanctions
ineffective where plaintiffs’ disruptive actions were “willful and deliberate” and had “not abated
despite prior orders, warnings, multiple hearings, and admonitions.”).
In sum, the Ehrenhaus factors weigh in favor of dismissal.
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Next, the Court considers whether to recommend dismissal with or without prejudice. A
Rule 41(b) dismissal “operates as an adjudication on the merits,” meaning dismissal is typically
with prejudice, unless “the dismissal order states otherwise.” Fed. R. Civ. P. 41(b). “Dismissing a
case with prejudice serves at least two purposes. It penalizes the party whose conduct warrants
the sanction and discourages ‘those who might be tempted to such conduct in the absence of such
a deterrent.’” Jones, 996 F.2d at 266 (quoting National Hockey League v. Metropolitan Hockey
Club, Inc., 427 U.S. 639, 643 (1976) (per curiam)).
If a court is recommending dismissal without prejudice, it need not examine the
Ehrenhaus factors. See AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d
1233, 1236 (10th Cir. 2009) (“Here, the district court dismissed [defendant’s] case without
prejudice, so it was not required to consider the criteria applicable to a dismissal with
prejudice.”). It follows then, that the Court’s examination of the Ehrenhaus factors and findings
with respect to same, warrant dismissal with prejudice. See, e.g., Swan Glob. Invs., 2020 WL
5204293, at *8 (dismissing with prejudice where all factors were met); Valdez, 2020 WL
4882436, at *4 (same).
Still, and given that some of the Ehrenhaus factors only weigh slightly in favor of
dismissal, the Court carefully considers the impact of dismissal with prejudice. On the one hand,
and as Plaintiff argues, any dismissal—whether with or without prejudice—could create a statute
of limitations challenge for Plaintiff down the road. (Doc. No. 26 at 6.) On the other hand, and as
Defendants argue, a dismissal without prejudice might still preserve Plaintiff’s claims under an
equitable tolling theory. (Doc. No. 29 at 6; see also Crowe v. Servin, 723 F. App’x 595, 597
(10th Cir. 2018) (finding a plaintiff may argue equitable tolling to re-file a case that was
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dismissed for failure to prosecute).) Assuming, without deciding, that Defendants are right and
that a dismissal without prejudice could potentially preserve Plaintiff’s claims, the Court next
considers whether the circumstances of this case warrant that.
The Court is sensitive to the challenges one might face when transient. If Plaintiff is
unhoused, he may be without a computer or regular access to a phone, and it may be difficult to
stay apprised of this litigation. The Court is also sensitive to how much work a litigation can be
and that for some, litigation is not only taxing, but overwhelming. However, Plaintiff is not on
his own. He has enjoyed legal representation since the inception of this case. And he appeared to
be in contact with his attorney from at least October 10, 2023, when he filed the Complaint,
through February of this year, when he submitted discovery responses. (Doc. No. 1; Doc. No. 29
at 4.) Given Plaintiff has had counsel for some time and has been involved in various stages of
the litigation process, the Court has every reason to believe Plaintiff understands the importance
of remaining engaged, is aware of his litigation obligations, and grasps the consequences of a
failure to prosecute. Thus, Plaintiff’s failure to appear at deposition, or even connect with his
attorney for such an extended period of time, tends to reflect a disinterest in pursuing his claims.
Moreover, a dismissal without prejudice would prolong the matter for Defendants, and
presumably be a drain on public resources. And a subsequent re-filing of these claims could be a
further drain on public resources because Plaintiff may be invested in the claims initially, only to
later abandon the claims once again. Finally, the Court feels it has a responsibility to message the
importance of fulfilling one’s litigation obligations. Our judiciary is too busy, and our system too
taxed, to invite the participation of litigants who are not willing to see their cases through.
For these reasons, the Court finds it appropriate to recommend dismissal with prejudice.
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CONCLUSION
For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants’
Motion to Dismiss for Failure to Prosecute pursuant to Fed. R. Civ. P. 41(b) (Doc. No. 24) be
GRANTED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the Magistrate Judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A
general objection that does not put the district court on notice of the basis for the objection will
not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s
report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. One Parcel of Real Prop.
Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to
make timely objections may bar de novo review by the district judge of the magistrate judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s
decision to review a magistrate judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at
1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
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review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.
1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had
waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,
1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal
the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th
Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Dated this 11th day of December, 2024.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
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