Free Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-01124-JLK-MEH

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Filed 09/29/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01124-JLK-MEH LINDA FORGACS, MONICA JONES, DANIEL LINK, GRACE MORENO, and PAM ROGGE, Plaintiffs, v. EYE CARE CENTER OF NORTHERN COLORADO; WILLIAM L. BENEDICT, M.D.; JOEL S. MEYERS, M.D.; MORRIS TILDEN, M.D.; IRENE OLIJYNK, M.D., and JAY R. HOLMS, Defendant.

RECOMMENDATION FOR DISMISSAL Entered by Michael E. Hegarty, United States Magistrate Judge. INTRODUCTION A settlement conference was held on this matter on May 22, 2006, and continuing on May 26, 2006. At that time, four of the five Plaintiffs in this case signed written settlement agreements with Defendants in Court. By Minute Order dated July 18, 2006, the parties were ordered to submit a stipulation of dismissal with prejudice no later than August 1, 2006, for all Plaintiffs except Linda Forgacs. To date, such a motion has not been filed, nor has an extension of time in which to do so been requested. Accordingly, it is hereby recommended that this matter be dismissed with regard to the claims of Plaintiffs Grace Moreno, Daniel Link, Monica Jones, and Pam Rogge , without prejudice, based upon a failure to prosecute or comply with the directive of the Court. Be advised that all parties shall have ten (10) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. FED. R. CIV. P. 72. The party filing objections must specifically identify those findings or

Case 1:04-cv-01124-JLK-MEH

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Filed 09/29/2006

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recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within ten (10) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164 (10th Cir. 1986). DISCUSSION The Federal Rules of Civil Procedure give a district court ample tools to deal with a recalcitrant litigant. See Jones v. Thompson, 99 F.2d 261, 264 (10th Cir. 1993). Rule 41(b) allows a defendant to move for dismissal of an action if the plaintiff fails to prosecute or to comply with a court order. See id. Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff' failure to prosecute or comply with the rules of civil procedure or the court' orders. Link s s v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). A court also has an "inherent power'to ` ` levy sanctions in response to abusive litigation practices.' Jones, 996 F.2d at 264 (quoting Roadway " Express, Inc. v. Piper, 447 U.S. 752, 765 (1980) and Turnbull v. Wilcken, 893 F.2d 256, 258-59 (10th Cir. 1990)). Plaintiffs have failed to prosecute this case with due diligence in the filing of their dismissal documents, and failed to follow a Court directive in this regard. Therefore, dismissal of these

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Case 1:04-cv-01124-JLK-MEH

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Filed 09/29/2006

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Plaintiffs' claims against Defendants is warranted, and this Court so recommends. CONCLUSION Based on the foregoing, and the entire record herein, I recommend that all claims in this action made against the Defendants by Plaintiffs Grace Moreno, Daniel Link, Monica Jones, and Pam Rogge be dismissed without prejudice. Dated at Denver, Colorado, this 29th day of September, 2006. BY THE COURT: s/Michael E. Hegarty Michael E. Hegarty United States Magistrate Judge

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