Egbune v. Baum et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:23-cv-02830-PAB-SBP
CHUCK O. EGBUNE,
Plaintiff,
v.
ANDREW BAUM,
DOUGLAS COUNTY PUBLIC TRUSTEE,
ALWAYS ENTERPRISES, INC., d.b.a. A-1 Bail Bonds
BRECKENRIDGE PROPERTY FUND 2016, LLC, and
LARRY HENNING,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
This matter is before the court after plaintiff Chuck O. Egbune failed to respond to an
order to show cause . ECF No. 62. For the reasons set forth below, the court now respectfully
RECOMMENDS that this case be DISMISSED without prejudice under Federal Rules of
Civil Procedure 41(b) and 4(m). In light of this recommendation, the court further
RECOMMENDS that the pending motions to dismiss filed by defendants Douglas County
Public Trustee, ECF No. 30, and Breckenridge Property Fund 2016, LLC’s (“Breckenridge”),
ECF No. 39, be DENIED as moot.
I. 	Background
Mr. Egbune filed this action on October 27, 2023, bringing numerous claims against
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Defendants Judge Andrew Baum, the Douglas County Public Trustee, Always Enterprises, Inc.,
Breckenridge, and Larry Henning. As of the date of this recommendation, only the Douglas
County Trustee and Breckenridge have been served and appeared in this action. See ECF No. 35
(document reflecting return of service for Breckenridge and waiver of service from Trustee). Mr.
Egbune has never served Judge Baum, Always Enterprises, Inc., or Mr. Henning. The court will
refer to the latter group of defendants in this recommendation as the “Unserved Defendants.”
The timeline of this action provides important context for the court’s recommendation
here to dismiss this action in its entirety. On April 1, 2024, Chief Judge Brimmer granted
Breckenridge’s motion to dismiss Mr. Egbune’s original complaint (ECF No. 9) and denied the
Trustee’s motion to dismiss (ECF No. 8) as moot. ECF No. 25. In that order, Chief Judge
Brimmer observed that “[t]he factual allegations in the complaint are somewhat unclear, but it
appears from the face of the complaint that Mr. Egbune is attempting to challenge orders issued
by Judge Baum in a case filed in the Douglas County District Court concerning the foreclosure
of Mr. Egbune’s ‘homestead/dwelling place’” in Highlands Ranch, Colorado. Id. at 2. Ultimately,
Chief Judge Brimmer concluded that it was appropriate for the court to decline to exercise
jurisdiction pursuant to Younger v. Harris, 401 U.S. 37 (1971), and to dismiss all claims against
every defendant in the case on the basis of Younger abstention. Id. at 13 (granting Breckenridge’s
motion to dismiss and dismissing Mr. Egbune’s claims against all defendants without prejudice).
Following that order, and having already submitted several stricken amended pleadings
(ECF Nos. 20, 22), Mr. Egbune filed on April 30, 2024, the amended complaint that is now the
operative complaint in this matter. ECF No. 28. The Trustee and Breckenridge—the only
defendants who have been served—again filed motions to dismiss. ECF No. 30 (Trustee’s
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motion to dismiss); ECF No. 39 (Breckenridge’s motion to dismiss). Both motions to dismiss
reiterate the argument that Younger abstention requires dismissal of Mr. Egbune’s claims. ECF
No. 33 at 2-3; ECF No. 39 at 9-14. Mr. Egbune did not respond to either motion to dismiss,
although he requested, and was granted, an extension of time to respond to Breckenridge’s
motion. ECF No. 48.
Mr. Egbune attempted to amend his complaint yet again. On June 17, 2024, this court
struck a proposed amended complaint (ECF No. 33) because Mr. Egbune’s filing failed to
comply with Federal Rule of Civil Procedure 15(a) and D.C.COLO.LCivR 15.1(b). ECF No. 46.
At that time, the court instructed Mr. Egbune that any future attempt to amend must be made by
means of an appropriate motion—accompanied by a proposed amended complaint reflecting
additions and strike-throughs—and submitted to the court no later than July 17, 2024. Id. Mr.
Egbune sought extensions of the amendment deadline, first to August 10, 2024, and then to
August 27, 2024. ECF Nos. 50, 52. The court granted Mr. Egbune an extension through August
27, 2024, but made clear that no further extensions would be granted. ECF No. 54. In the end,
Mr. Egbune did not file another motion seeking leave to amend, nor has he made any filings in
this matter since August 12, 2024, when he last asked for an extension to move to amend his
complaint. ECF No. 52.
On October 18, 2024, this court, mindful that this action had then been pending nearly
one full year, exercised its discretion to manage and control the docket by taking up the issue of
Mr. Egbune’s failure to effect service on the Unserved Defendants. On that date, the court
entered an order setting November 18, 2024, as the deadline to effectuate service on the
Unserved Defendants and to file returns or waivers of service. ECF No. 58. In that order, the
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court explicitly warned Mr. Egbune of the consequences of failing to accomplish service on the
Unserved Defendants by the stated deadline:
If Plaintiff has not filed a return or waiver of service as to each of the Unserved
Defendants by November 18, 2024, this court may, without further notice,
recommend dismissal without prejudice of the claims against any defendant
who has still not been served.1
Id. (emphasis added). The Clerk of Court filed a certificate of mailing confirming that a copy of
this order was mailed to Mr. Egbune at his address of record. ECF No. 59. The docket does not
indicate that this mailing was returned as undeliverable.
The November 18 service deadline came and went with no word from Mr. Egbune and no
indication that the Unserved Defendants had been served. On November 20, 2024, the court
issued an order to show cause:
Plaintiff is ORDERED to show cause by no later than December 11, 2024 and
explain why the court should not recommend that the Unserved Defendants be
dismissed for failure to serve under Federal Rule of Civil Procedure 4(m). Plaintiff
is advised that failure to show cause and comply with this Order may result in the
court recommending that this case be dismissed without prejudice in its entirety
under Rule 41(b) for failure to comply with a court order.
ECF No. 60 (italicized emphasis added; other emphasis in original). This order, too, was mailed
to Mr. Egbune by the Clerk of Court and not returned. ECF No. 61. The December 11 deadline
passed without word or action from Mr. Egbune.
Finally, desiring to give Mr. Egbune a final chance to comply with its orders, the court
issued a second order to show cause, unequivocally explaining the steps Mr. Egbune was
1 The Clerk of Court filed certificates of mailing indicating that copies of the court’s Orders
issued by this court were mailed to Mr. Egbune at his address of record. ECF Nos. 59, 61, 63.
The copies sent to Mr. Egbune have not been returned as undeliverable.
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required to take to bring his actions into conformity with the court’s directives, and warning him
that he had come to end of the line:
The court set a deadline of November 18, 2024, for Plaintiff to serve defendants
Andrew Baum, Always Enterprises, Inc., d.b.a. A-1 Bail Bonds, and Larry Henning
(collectively, Unserved Defendants). ECF No. 58. That deadline passed without
action from Plaintiff despite the Clerk of Court indicating that the court’s Order was
sent to Plaintiff via certified mail. ECF No. 59. The court then issued an Order to
Show Cause, ECF No. 60, requiring Plaintiff to explain why the court should not
recommend that the Unserved Defendants be dismissed for failure to serve under
Federal Rule of Civil Procedure 4(m). The court then warned Plaintiff that failure
to show cause may result in the court recommending that this case be dismissed
without prejudice in its entirety under Rule 41(b) for failure to comply with a court
order. Plaintiff’s response was due December 11, 2024. That deadline has also now
passed without action from Plaintiff, again despite the docket indicating that a copy
of the court’s order was mailed to Plaintiff’s address. ECF No. 61.
In recognition of Plaintiff’s pro se status, the court will give Plaintiff a final
opportunity to comply with its orders. Accordingly, the court ORDERS Plaintiff
to show cause by January 9, 2025, and explain why this case should not be
dismissed in its entirety for failure to prosecute and failure to comply with a court
order pursuant to Rule 41(b). Plaintiff is advised that the court will recommend
dismissal of this action if Plaintiff does not respond to this Order.
ECF No. 62 (emphasis in original).2 Mr. Egbune did not respond to the second order to show
cause.
In accordance with its multiple explicit warnings to Mr. Egbune, this court now
respectfully recommends that all claims, against all defendants (served and unserved), be
dismissed without prejudice.
2 The court misspoke when it said that its orders had been sent to Mr. Egbune via certified mail.
Those orders were mailed to Mr. Egbune via ordinary mail through the postal service. To
reiterate, the copies sent to Mr. Egbune have not been returned as undeliverable.
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II. 	Analysis
Pursuant to Federal Rule of Civil Procedure 41(b), “[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.” Rule 41(b) “has long been interpreted to permit courts to dismiss actions sua
sponte for a plaintiff’s failure to prosecute or comply with the rules of civil procedure or a court’s
orders.” Montoya v. Colo. Dep’t of Corr., No. 20-cv-03345-NYW-STV, 2022 WL 17536170,
at *2 (D. Colo. Dec. 8, 2022) (quotation omitted). So too do the Local Rules in this District
permit the court to address, without motion from a party, a litigant’s failure to prosecute and to
comply with court orders:
A judicial officer may issue an order to show cause why a case should not be
dismissed for lack of prosecution or for failure to comply with these rules, the
Federal Rules of Civil Procedure, or any court order. If good cause is not shown
within the time set in the show cause order, a district judge or a magistrate judge
exercising consent jurisdiction may enter an order of dismissal with or without
prejudice.
D.C.COLO.LCivR 41.1.
By default, dismissal under Rule 41(b) “operates as an adjudication on the merits,” and
therefore is with prejudice. Fed. R. Civ. P. 41(b); 9 Charles Alan Wright & Arthur R. Miller, Fed.
Prac. and Proc. § 2373 (4th ed. 2023). However, the court also bears in mind that dismissal with
prejudice under Rule 41(b) is a harsh remedy and is “the death penalty of pleading punishments,”
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cnty. Justice Center, 492 F.3d 1158,
1162 (10th Cir. 2007), given that it operates as a res judicata bar against any future filing. In light
of the severity of this remedy, the court ordinarily considers what have come to be known as the
“Ehrenhaus factors” before dismissing a claim with prejudice under Rule 41(b). Montoya,
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2022 WL 17536170, at *2 (discussing Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir.
1992)).
Here, for the reasons discussed below, the court ultimately finds that dismissal without
prejudice is appropriate. In such circumstances, a court typically not need examine the
Ehrenhaus factors. See Banks v. Katzenmeyer, 680 F. App’x 721, 724 (10th Cir. 2017) (stating
that the Ehrenhaus analysis is not necessary where dismissal under Rule 41(b) is without
prejudice). Nevertheless, in an abundance of caution and in the event a dismissal may have the
effect of preventing Mr. Egbune from refiling some or all of his claims, the court will proceed to
examine whether dismissal is proper under the Ehrenhaus factors.
In Ehrenhaus, the Tenth Circuit Court of Appeals articulated the factors to be considered
in evaluating whether dismissal of a case is warranted: (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, 965 F.2d
at 921. Under this “flexible framework, . . . dismissal is warranted where ‘the aggravating factors
outweigh the judicial system’s strong predisposition to resolve cases on their merits.’”
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007) (quoting
Ehrenhaus, 965 F.2d at 921).
Upon a careful consideration of the record, the court finds that each of the Ehrenhaus
factors favors dismissal of this action.
Prejudice to Defendants. First, the court finds that Defendants have incurred prejudice in
a case that Mr. Egbune has chosen to litigate in fits and starts and has now seemingly abandoned.
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The Douglas County Trustee and Breckenridge filed motions to dismiss the first iteration
of Mr. Egbune’s complaint (ECF No. 1), in which they argued that this court lacks subject matter
jurisdiction over Mr. Egbune’s claims. ECF Nos. 8, 9 (motions to dismiss). Chief Judge Brimmer
granted Breckenridge’s motion, and simultaneously denied the Trustee’s motion as moot, in an
order finding that Mr. Egbune’s claims were jurisdictionally untenable not only as to
Breckenridge, but as to all Defendants. ECF No. 25 at 13. The court gave Mr. Egbune
permission to file an amended complaint, see id., which he submitted on April 30, 2024. ECF
No. 28. That complaint prompted a second set of motions to dismiss from the Trustee and
Breckenridge. ECF Nos. 30, 39. In those pending motions, the movants make substantially the
same arguments that Chief Judge Brimmer credited in his order dismissing the original
complaint. Mr. Egbune never responded to those motions, but it is clear from the court record
that both the Trustee and Breckenridge have dedicated significant time to these filings.
The manner in which Mr. Egbune has litigated this case has caused the Trustee and
Breckenridge to undertake other significant work. His non-compliant filings have precipitated
two motions to strike, ECF Nos. 23, 41, both of which were granted. ECF Nos. 24, 46. The
Trustee and Breckenridge were required to respond to Mr. Egbune’s motion for preliminary
injunction, ECF Nos. 11, 12, which was denied as moot when Chief Judge Brimmer determined
that subject matter jurisdiction is lacking. ECF No. 25 at 13. And the Trustee filed a motion to
stay discovery, ECF No. 37, which this court granted, ECF No. 45.
After initiating this case and compelling counsel for the defendants to expend
consequential time explaining the lack of subject of subject matter jurisdiction and responding to
other filings, Mr. Egbune has effectively disappeared. He thus has caused actual prejudice to the
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Trustee and Breckenridge in the form of attorney’s fees and costs in a case he now apparently has
decided not to pursue, without explanation or communication with this court. The prejudice to
Defendants weighs in favor of dismissing Mr. Egbune’s claims.
Interference with the Judicial Process. As to the second Ehrenhaus factor, the court
finds that there has been substantial interference with the effective administration of justice
caused by Mr. Egbune’s failure to comply with the rules and orders of this court.
Mr. Egbune’s s noncompliance has manifested itself multiple times. As of the date of this
recommendation, he failed to serve the Unserved Defendants in violation of Federal Rule of
Civil Procedure 4(m). Fed. R. Civ. P. Rule 4(m) (“If a defendant is not served within 90 days
after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order that service be made within a
specified time.”). Mr. Egbune’s long delay in serving three defendants prompted this court to
issue an order requiring him to complete service on or before November 18, 2024. Silence on
Mr. Egbune’s part ensued, but the court gave Mr. Egbune a second chance, ordering him to show
cause by December 11, 2024, why the court should not recommend that his claims against the
Unserved Defendants be dismissed. Utter silence again from Mr. Egbune, but even then the court
did not recommend that the case be dismissed. Instead, the court gave Mr. Egbune a third, “final
opportunity to comply with its orders,” ordering him to show cause and explain, on or before
January 9, 2025, why the case should not be dismissed for failure to prosecute and failure to
comply with a court order. ECF No. 60 (emphasis in original). Mr. Egbune again made no
response, prompting the instant recommendation.
In sum, Mr. Egbune has failed to comply with the Federal Rule of Civil Procedure
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governing service. He has failed to comply with three orders issued by the undersigned
magistrate judge for the purpose of managing this case and ascertaining whether Mr. Egbune
actually desires to litigate a case he elected to bring. It is now manifest that he does not. For over
five months, Mr. Egbune has not participated in this matter, notwithstanding the court’s explicit
directives. Mr. Egbune’s conduct has necessitated the expenditure of this court’s limited
resources—reflected in the court’s work discussed above and in the work required to prepare this
recommendation. The second Ehrenhaus factor weighs in favor of dismissing this action as a
sanction for Mr. Egbune’s inaction.
Culpability of Plaintiff. Concerning the third Ehrenhaus factor, the court finds there is
culpability on Mr. Egbune’s part.
This court has repeatedly instructed Mr. Egbune to abide by the rules of the court, to
effect service on the Unserved Defendants, and to respond to orders to show cause. He has not
done so. He has flouted the court’s authority—and disrespected his opponents in the litigation—
by completely absenting himself for many months in a case he initiated and in which he
personally seeks relief. In assessing this chronology of non-compliance, the court observes that
Mr. Egbune, though representing himself, is not a typical pro se litigant.
Mr. Egbune is an attorney whose license to practice law in Colorado was suspended for a
period of three years commencing on June 9, 2023, by order of the Office of the Presiding
Disciplinary Judge of the Colorado Supreme Court. People v. Chuck Odifu Egbune, #26022,
No. 22PDJ029, 531 P.3d 456 (Mar. 21, 2023); see also, e.g., St. Louis Baptist Temple v. Fed.
Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (“[I]t has been held that federal courts,
in appropriate circumstances, may take notice of proceedings in other courts, both within and
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without the federal judicial system, if those proceedings have a direct relation to matters at
issue.”). In its Opinion Imposing Sanctions Under C.R.C.P. 242.31, the Hearing Board described
Mr. Egbune’s misconduct as including, among other offenses, “fil[ing] duplicative claims in
different counties” and “lodg[ing] vexatious and baseless claims.” Id. at 456. Mr. Egbune’s
conduct, the Hearing Board found, violated “[Colorado Rule of Professional Conduct] 3.4(c) (a
lawyer must not knowingly disobey an obligation under the rules of a tribunal); Colo. RPC 8.4(c)
(it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud,
deceit, or misrepresentation); and Colo. RPC 8.4(d) (it is professional misconduct for a lawyer to
engage in conduct that prejudices the administration of justice).” Id.
The court takes notice of this publicly available information for the purpose of
emphasizing that Mr. Egbune has the legal training and experience to understand the
consequences of failing to comply with court rules and orders. Even so, he has blatantly
disregarded rules and orders in this federal forum. He bears responsibility for delaying the
progress of this litigation. He has failed to comply with court rules governing service on
defendants and the proper submission of amended pleadings. He has failed to respond to three
specific orders from this court. He has failed to respond to other filings on critical substantive
matters. And his months-long silence emphasizes his unwillingness to prosecute this case. Put
simply, Mr. Egbune’s actions demonstrate both indifference to his case and a lack of respect for
this court and the judicial process. Mr. Egbune alone is the culpable party in this litigation.
Advance Notice of Sanction of Dismissal. As to the fourth Ehrenhaus factor, the court
explicitly warned Mr. Egbune that his non-compliance could result in the dismissal of this action.
ECF No. 60 (“Plaintiff is advised that failure to show cause and comply with this Order may
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result in the court recommending that this case be dismissed without prejudice in its entirety
under Rule 41(b) for failure to comply with a court order.”); ECF No. 62 (“Plaintiff is advised
that failure to show cause and comply with this Order may result in the court recommending that
this case be dismissed without prejudice in its entirety under Rule 41(b) for failure to comply
with a court order.”). Because Mr. Egbune has received warnings that failures to comply with the
court’s orders could result in dismissal of his claims, this factor weighs in favor of dismissal of
this action.
Efficacy of a Lesser Sanction. Finally, after evaluating the fifth Ehrenhaus factor, this
court concludes that the circumstances here compel the conclusion that no sanction short of
dismissal would be of any effect.
Nothing in the record before the court suggests that Mr. Egbune is willing to litigate this
case. Neither is there any indication that his behavior—including his repeated decisions to ignore
orders issued by this court—is likely to change. And this record strongly suggests that an order
imposing a monetary sanction is likely to be ineffective; like other orders in this case, the court
must anticipate that Mr. Egbune would ignore it. In light of this incontrovertible record, this
court respectfully finds that no lesser sanction would be effective and that dismissal is the
appropriate result.
* 	* 	*
In summary, following careful scrutiny of the record in light of the Ehrenhaus factors,
this court respectfully concludes that this action should be dismissed without prejudice because
of Mr. Egbune’s failure to prosecute the case and to comply with court orders. While Mr.
Egbune’s non-compliant conduct is in no way praiseworthy, neither is the court prepared to
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conclude at this juncture that his actions reflect the “willful misconduct” necessary to impose the
last-resort sanction of dismissal with prejudice. See Ehrenhaus, 965 F.2d at 920; see also, e.g.,
Walker v. Calhoun, No. 21-cv-01524-RM-MEH, 2022 WL 827411, at *3 (D. Colo. Feb. 25,
2022) (recommending dismissal without prejudice where plaintiff failed to timely serve the
defendant and to respond to an order to show cause notifying plaintiff of the consequence for
failure to serve), recommendation adopted, 2022 WL 824434 (D. Colo. Mar. 18, 2022); Coad v.
Waters, No. 11-cv-01564-PAB-CBS, 2013 WL 1767788, at *3 (D. Colo. Apr. 5, 2013)
(recommending dismissal without prejudice where plaintiff failed to file a notice of change of
address, to respond to an order to show cause, to comply with the court’s Local Rules, and to
prosecute the case), recommendation adopted, 2013 WL 1767786 (D. Colo. Apr. 24, 2013).
Dismissal without prejudice therefore is appropriate.
III. 	Conclusion
Consistent with the reasons as set forth herein, it is respectfully RECOMMENDED as
follows:
(1) That all claims against defendants Douglas County Public Trustee and Breckenridge
Property Fund 2016, LLC, be DISMISSED without prejudice pursuant to Rule 41(b);
(2) That all claims against the Unserved Defendants—Andrew Baum, Always
Enterprises, Inc., and Larry Henning—be DISMISSED without prejudice pursuant to Rule
4(m) and Rule 41(b); and
(3) That the pending motions to dismiss filed by defendants Douglas County Public
Trustee, ECF No. 30, and Breckenridge Property Fund 2016, LLC, ECF No. 39, be DENIED as
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moot.3
DATED: January 22, 2025 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
3 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”).
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