Bighorn Construction & Reclamation, LLC v. RES America Construction Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Bighorn Construction & Reclamation, LLC,
Plaintiff/Counter Defendant,
vs.
RES America Construction Inc.,
Defendant/Counter Claimant.
Case No. 1:21-cv-00113
ORDER GRANTING, IN PART, AND DENYING, IN PART MOTION TO DISMISS
[¶1] 	THIS MATTER comes before the Court on a Motion to Dismiss filed by RES American
Construction Inc. (“RES”) on September 27, 2022. Doc. No. 56. The Plaintiff, Bighorn
Construction & Reclamation LLC (“BCR”) has not filed a Response to RES’s Motion to Dismiss.
For the reasons set forth below, RES’s Motion to Dismiss is GRANTED, in part, and DENIED,
in part.
BACKGROUND
[¶2] 	This case was removed from State Court on May 21, 2021. Doc. No. 1. BCR originally
filed this action in State Court for breach of contract, seeking damages in the amount of
$3,479,311.96. Doc. No. 1-2. In the time since this case was removed to this Court, Counsel for
BCR was permitted to withdraw as Counsel on September 20, 2022. Doc. No. 55. In making their
request, Counsel for BCR explained BCR refused to furnish the requested documents necessary to
prosecute this suit and had not made timely payments to Counsel. Doc. No. 54, p. 1. RES filed the
current Motion to Dismiss on September 27, 2022, and now approximately ten (10) months have
passed since BCR’s response was due. According to the record provided by RES, BCR has not
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provided requested discovery, hired new counsel, or taken any other action to prosecute this matter.
RES filed its Motion to Dismiss seeking dismissal of this case with prejudice, arguing the repeated
discovery violations and persistent failure to prosecute this case justifies a dismissal with
prejudice. See Doc. No. 57.
[¶3] 	Since the Motion to Dismiss was filed, RES filed a Supplemental Letter to the Court on
November 3, 2022, requesting an expedited ruling on the Motion. Doc. No. 59. On February 7,
2023, RES filed a Motion to Stay Pretrial Deadlines until such time as the Court has ruled on
RES’s Motion to Dismiss. Doc. No. 60. Magistrate Judge Clare R. Hochhalter granted the Motion
to Stay on March 30, 2023. Doc. No. 61. In doing so, Magistrate Judge Hochhalter noted Plaintiff
cannot proceed pro se because it is a non-corporate entity. Id. at pp. 1-2. He noted BCR had five
months to find new counsel, noting no attorney had made an appearance of record. Id. at p. 2.
Magistrate Judge Hochhalter then ordered Plaintiff to retain new counsel within twenty-one (21)
days from the date of that Order. Id.
[¶4] 	On April 28, 2023, Magistrate Judge Clare R. Hochhalter issued another Order requiring
the Parties to submit a status report to the Court by May 8, 2023, to identify what, if any, efforts
they have made to resolve this case. Doc. No. 62. On May 8, 2023, RES filed a Status Report. Doc.
No. 63. RES indicated both Orders from Magistrate Judge Hochhalter were met with “radio
silence” from BCR. Id. at p. 1. RES then renewed its request to dismiss this case with prejudice
on the merits.
DISCUSSION
[¶5] 	Fed. R. Civ. P. 41(b) governs dismissal of a case for lack of prosecution of the claims by
Plaintiff. Rule 41(b) explains a dismissal under this Rule constitutes a decision on the merits of
the case unless otherwise stated by the Court. Dismissal with prejudice under Rule 41(b) for failure
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to prosecute has been described by the Eighth Circuit as an “extreme sanction.” Givens v. A.H.
Robins Co., 751 F.2d 261, 263 (8th Cir. 1984). The Circuit has indicated, however, dismissal with
prejudice may be “used in cases of willful disobedience of a court order or continued or persistent
failure to prosecute a complaint.”
[¶6] 	Furthermore, Local Rule 7.1(F) provides that a failure on the part of an adverse party to
file a response with the Court “may be deemed an admission that the motion is well taken.” D.N.D.
Civ. L.R. 7.1(F). BCR’s failure to file a response within the prescribed time also subjects RES’s
Motion to Dismiss to summary ruling. Id.
[¶7] 	The Court has reviewed the entire record and agrees with RES that BCR has failed to
prosecute this case and the case is, therefore, subject to dismissal. Since the time the Motion to
Withdraw as Counsel was filed, BCR has repeatedly failed to participate in the litigation of this
case. 	However, 	the 	Court 	disagrees 	dismissal 	with 	prejudice 	is 	appropriate 	under 	the
circumstances. While the Court appreciates the delay caused by BCR’s repeated failure to retain
counsel and respond to RES’s Motion caused BCR to participate in a stagnant litigation, the Court
believes a potential adjudication later on the merits is the preferable outcome in the event BCR
eventually retains counsel and refiles its claims. There has been limited factual development of the
record regarding BCR’s claims and at this juncture dismissal with prejudice is too severe a remedy.
See Givens, 751 F.2d at 263 (describing dismissal with prejudice for failure to prosecute as an
“extreme sanction.”).
CONCLUSION
[¶8] 	Accordingly, for the foregoing reasons, RES is entitled to dismissal for BCR’s continued
failure to prosecute this case. Insofar as the Motion seeks Dismissal of the Complaint, RES’s
Motion to Dismiss is GRANTED. However, as discussed above, RES’s request to dismiss the
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Complaint with prejudice is DENIED. Accordingly, BCR’s claims against RES are DISMISSED
without prejudice.
[¶9] 	IT IS SO ORDERED.
DATED July 20, 2023.
Daniel M. Traynor, District Judge
United States District Court
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