2:24-cv-00023•Amboh v. Kroger Co, The
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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.) Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 1 of 10
2 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.) Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 2 of 10
3 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 Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 3 of 10
4 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.) Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 4 of 10
5 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.) Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 5 of 10
6 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). Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 6 of 10
7 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). Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 7 of 10
8 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). Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 8 of 10
9 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.) Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 9 of 10
10 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). Case 2:24-cv-00023-JNP Document 64 Filed 01/20/26 PageID.<pageID> Page 10 of 10
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