Free Motion to Dismiss/Lack of Prosecution - District Court of Colorado - Colorado

Case 1:01-cv-01633-LTB-OES

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Filed 10/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1633-LTB-OES ANNABELLE D. MATA, Plaintiff, v. JUDY SAIZ; and DANA WELDON Defendants.

DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE

Defendants Judy Saiz, and Dana Weldon, by and through counsel, HALL & EVANS, L.L.C., hereby submit this Motion to Dismiss for Failure to Prosecute, and as grounds therefore state as follows: 1. On April 22, 2003, this Court granted Defendants' Motion for Summary

Judgment, dismissing all claims against all Defendants other than one claim against Defendant Judy Saiz. [Docket No. 81]. Plaintiff later appealed. 2. On May 22, 2003, Plaintiff stipulated to the dismissal of the remaining claim in

order to appeal the grant of s ummary judgment. [Docket No. 85]. As part of the stipulation, if any of the dismissed claims were reinstated by the Tenth Circuit Court of Appeals, the one claim against Defendant Saiz not dismissed by this Court would be reinstated. This Court approved the stipulation on June 4, 2003. [Docket No. 92].

Case 1:01-cv-01633-LTB-OES

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3.

Following appellate briefing, the Tenth Circuit Court of Appeals affirmed the

Court's dismissal of claims against Defendants Saiz, Hough, and Quintana but reinstated a claim against Defendant Weldon. As such, on February 6, 2006, the claim against Defendant Weldon was remanded back to this Court and, pursuant to the stipulation, the remaining claim against Defendant Saiz was reinstated. [Docket No. 98]. 4. On September 27, 2006, Plaintiff's counsel filed a Motion to Withdraw. [Docket

No. 99] This Court granted the Motion on June 30, 2006. [Docket No. 100]. 5. On July 11, 2006, the Order concerning the Motion to Withdraw was returned as [Docket No. 101]. No further action was

undeliverable to the address provided by Plaintiff.

taken by Plaintiff pertaining to the case as far as is known to Defendants. 6. Pursuant to D.C.Colo.L.R. 10.1(M), a party is required to notify the Court and

opposing counsel of any change of address, telephone number, or e -mail address within ten days of the change. No notice was filed with the Court or the undersigned by Plaintiff or any

substituted counsel. 7. A federal court possesses the discretion to dismiss an action for failure to

prosecute when a party fails to comply with the rules of the court. See Fed. Rule Civ. Proc. 41(b). A district court may dismiss an action under Rule 41(b) only after considering whether certain factors support a dismissal. These factors, set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), include "(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." Mobley v. McCormick, 40 F.3d 337,

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340 (10th Cir. 1994) (quotation and alteration omitted) (applying Ehrenhaus factors to dismissal under Rule 41(b)). 8. This case was commenced in August 2001. Plaintiff's failure to provide this

Court or Defendants with her location is clearly prejudicial and interferes with the judicial process, not to mention that her failure reflects her apparent disinterest in pursuit of this matter. 9. As stated in paragraph 6, Plaintiff is obligated to inform the Court of any change

of address. Plaintiff failed to comply with such rule and took no action for over three months to pursue this matter, from at least the time of the return of this Court's Order granting the Motion to Withdraw. As such, her culpability is substantial. 10. Although the Court did not earlier warn Plaintiff in a direct manner that dismissal

of this action was a likely sanction for noncompliance with the local rules, it s now evident that i Plaintiff's absence from any further court proceedings is detrimental to her case and that her absence could result in the dismissal of this action. 11. No lesser sanction is an available alternative here, in particular because Plaintiff Without Plaintiff taking action to provide her location, this matter cannot

cannot be located.

proceed. Without a dismissal order, the case will linger on the Court docket and hang over the Defendants, who are medical professionals very concerned to see this matter conclude. 12. Due to the prejudicial nature of allowing this matter to linger indefinitely for the

medical professional Defendants, the interference with the judicial process, Plaintiff's clear culpability, and the utter failure of Plaintiff to come forward, this Court must dismiss this action with prejudice for Plaintiff's failure to prosecute.

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WHEREFORE, for all of the foregoing reasons, Defendants Judy Saiz and Dana Weldon respectfully requests this Court dismiss the remaining claims in this action with prejudice for Plaintiff's failure to prosecute, and for all other and further relief as this Court deems just and appropriate. Dated this 17th day of October 2006. Respectfully submitted,

s/ Edmund M. Kennedy________ Thomas J. Lyons, Esq. Edmund M. Kennedy, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 Phone: 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS SAIZ AND WELDON

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 17th day of October 2006, I electronically filed the foregoing DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO PROSECUTE with the Clerk of Court using the CM/EFC system which will send notification of such filing to the following e mail addresses: None. and I hereby certify that I have mailed or served the document or paper to the following non CM/EFC participants in the manner indicated by the non-participant's name: Annabelle D. Mata C/o Roger Abbata 4606 West Vingham Place Denver, Colorado 80219

s/Marlene Wilson, Secretary Thomas J. Lyons, Esq. Edmund M. Kennedy, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 Phone: 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS SAIZ AND WELDON

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