Brady v. Sparkuhl

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DALE BRADY,
Plaintiff,
v. 	No. 2:26-cv-1568 MLG/DLM
MICHAEL SPARKUHL,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Since the removal of this action to federal court, pro se Plaintiff Dale Brady has failed to
properly serve Defendant Michael Sparkuhl, failed to respond to two Orders to Show Cause, and
otherwise failed to prosecute this case. Accordingly, for the reasons discussed below, the
undersigned recommends that the Court dismiss this action without prejudice.
I. 	Background
Plaintiff filed this action in state court on April 14, 2026. (Docs. 1 ¶ 2; 1‑1 at 1.) Defendant
removed the case on May 15, 2026. (Doc. 1.) In the Notice of Removal, Defendant stated that he
had not been served but had “received a copy of the initial pleading through other means on or
around April 16, 2026.” (Id. ¶¶ 5–6.)
On May 28, 2026, the Court ordered Plaintiff to complete service of process no later than
August 13, 2026. (Doc. 5 at 3.) Plaintiff failed to comply. The Court then issued an Order to Show
Cause regarding Plaintiff's failure to comply with the service Order. (Doc. 6.) Plaintiff did not
respond to the Order to Show Cause.
On September 21, 2026, the Court entered a Second Order to Show Cause directing
Plaintiff to explain why this action should not be dismissed for “failure to prosecute and failure to
comply with Court orders.” (Doc. 8 at 2.) The Court noted that Plaintiff had failed to comply with
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its May 28, 2026 Order requiring service by August 13, 2026, and had failed to respond to the
Court’s August 21, 2026 Order to Show Cause regarding that deficiency. (Id. at 1–2.) The Court
also reminded Plaintiff that, notwithstanding his pro se status, he remained responsible for
complying with applicable rules and court orders and for prosecuting the action, including
effecting service on Defendant. (Id. at 1–2.) Plaintiff was again ordered to show cause, no later
than October 5, 2026, why this action should not be dismissed for failure to prosecute and failure
to comply with Court orders. (Id. at 2.) The Court warned Plaintiff that “[f]ailure to timely show
cause may result in dismissal of this case.” (Id.) Plaintiff did not file a response by the deadline or
at any time thereafter.
II. 	Analysis
Dismissal is warranted based on Plaintiff’s failure to serve Defendant, failure to prosecute
this action, and failure to comply with Court orders. Although the Court liberally construes pro se
filings, a litigant’s “pro se status does not excuse the obligation of any litigant to comply with the
fundamental requirements of the Federal Rules of Civil . . . Procedure.” Ogden v. San Juan Cnty.,
32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)).
A. 	Failure to Serve
Federal Rule of Civil Procedure 4(m) provides, “[i]f 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.” Fed. R. Civ. P. 4(m). “But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an appropriate period.” Id.
Plaintiff did not serve Defendant within Rule 4(m)’s 90‑day period and has not effected
service at any time since this action was filed. Plaintiff also failed to comply with the Court’s May
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28, 2026 Order requiring service by August 13, 2026. After Plaintiff failed to comply with that
Order, the Court issued an Order to Show Cause directing Plaintiff to explain his noncompliance.
Plaintiff did not respond. The Court subsequently issued a Second Order to Show Cause directing
Plaintiff to show cause why the case should not be dismissed for failure to prosecute and failure to
comply with Court orders. Plaintiff again failed to respond. The Court expressly warned Plaintiff
that failure to timely show cause could result in dismissal of the action. Plaintiff nevertheless filed
no response and made no attempt to effect service. Plaintiff has not shown good cause for his
failure to effect service. Despite receiving two opportunities to explain his noncompliance,
Plaintiff did not respond to either Order to Show Cause and has made no filing addressing service.
Under these circumstances, dismissal without prejudice is required. See id.
B. 	Failure to Prosecute and Comply with Court Orders
Rule 41(b) authorizes dismissal when a plaintiff fails to prosecute or comply with the
Federal Rules or court orders. See Fed. R. Civ. P. 41(b). Although the Rule contemplates a motion
by the defendant, it “has long been interpreted to permit courts to dismiss actions sua sponte for a
plaintiff’s failure to prosecute . . . .” Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th
Cir. 2007) (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)).
The District of New Mexico local rules likewise provide that “[a] civil action may be
dismissed if, for a period of ninety (90) days, no steps are taken to move the case forward.” D.N.M.
LR-Civ. 41.1.
Because dismissal here is without prejudice, the Court need not apply the Ehrenhaus
factors,1 and “may, without abusing its discretion, enter such an order without attention to any
1 Ehrenhaus sets out the considerations a court must weigh before dismissing a case with prejudice as a sanction,
including prejudice to the defendant, interference with the judicial process, the litigant’s culpability, prior warnings,
and the availability of lesser sanctions. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (citations
omitted).
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particular procedures.” AdvantEdge Bus. Group v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d
1233, 1236 (10th Cir. 2009) (quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1162 (10th Cir. 2007)) (internal quotations omitted).
Here, Plaintiff has taken no action to prosecute this case since its removal. Plaintiff failed
to serve Defendant, failed to comply with the Court’s May 28, 2026 service Order, failed to
respond to the August 21, 2026 Order to Show Cause, and failed to respond to the September 21,
2026 Second Order to Show Cause despite being expressly warned that dismissal could result.
Under these circumstances, dismissal without prejudice is warranted.
III. 	Conclusion
For the foregoing reasons, the undersigned RECOMMENDS the Court DISMISS this
case WITHOUT PREJUDICE for failure to serve Defendant, failure to prosecute, and failure to
comply with Court orders.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the 14-day period if that party wants
to have appellate review of the proposed findings and recommended disposition. If no
objections are filed, no appellate review will be allowed.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
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