Free Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-01102-RPM-BNB

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Filed 12/01/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 04-cv-01102-RPM-BNB MINTECH STAFFING, LLC, Plaintiff, v. GLOBAL WIRELESS, INC., GREGORY CASSIDY, MELISSA CASSIDY, and F. COOPER WARD, Defendants. ______________________________________________________________________________ RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ This matter arises in connection with my Order to Show Cause entered on November 14, 2005 (the " Order to Show Cause" There, I ordered the plaintiff to show cause on or before ). November 28, 2005, why this case should not be dismissed for lack of prosecution and failure to comply with my orders requiring the plaintiff to cause substitute counsel to enter an appearance on its behalf. In the Order to Show Cause, I also cautioned the plaintiff that its failure to respond would result in a recommendation that the case be dismissed. No response has been received. This action is related to Global Communications Consulting Group v. Mintech Staffing, L.L.C., Case No. 02-cv-01910-RPM-BNB (the " Global Comm case" In the Global Comm case, ). Mintech received a judgment in its favor and against Global Communications on Mintech' s counterclaim, in the amount of $115,695 plus interest. The judgment was entered in favor of Mintech on February 19, 2004.

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Mintech caused a writ of garnishment to be served on Gregory Casady in an attempt to locate assets to satisfy its judgment against Global Communications. Mr. Casady failed to respond to the writ of garnishment, and the Clerk of the Court entered a default against him in connection with the writ of garnishment on September 24, 2004. Mintech moved for the entry of a default judgment against Mr. Casady. In the meantime, this action was commenced on May 28, 2004, alleging causes of action to pierce the corporate veil and for fraudulent transfers, all in a further attempt to collect on Mintech' judgment entered in the Global Comm case. s While the motion for default judgment on the writ of garnishment was pending, on July 26, 2005, Mintech' counsel filed motions to withdraw in this case and in the Global Comm.1 s The motions to withdraw recited as their bases " irreconcilable differences on how this legal matter should proceed and our client' inability to meet the financial requirements of litigation." On s August 25, 2005, I granted the motion of Mintech' counsel to withdraw from its representation s here. The order allowing withdrawal states: Because the plaintiff is a corporation, it must be represented by counsel. Flora Const. Co. v. Fireman' Fund Ins. Co., 307 F.2d s 413, 413-14 (10th Cir. 1962). Accordingly, the plaintiff shall cause substitute counsel to enter his or her appearance on or before September 8, 2005. On September 7, 2005, Mintech requested an extension of time, through October 8, 2005,

The motion for default judgment on the writ of garnishment ultimately was denied because Mintech failed to prove that Mr. Casady was indebted to Global Communications on the date the writ of garnishment was served and failed to establish the amount of any such indebtedness. See Recommendation of United States Magistrate Judge, entered August 29, 2005 (in Case No. 02-cv-01910), at p.6; and Order, entered October 7, 2005 (in Case No. 02-cv01910)(accepting the Recommendation). 2

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within which to find substitute counsel. That request was granted by a minute order dated September 9, 2005. On October 11, 2005, Mintech sought a second extension of time to find substitute counsel, requesting to and including November 8, 2005. That request also was granted, although I cautioned Mintech that no further extensions would be allowed. Order, entered October 13, 2005, at p.1. Mintech failed to comply with my orders of August 25 and October 13, 2005, requiring it to cause substitute counsel to enter an appearance on or before November 8, 2005, and failed to prosecute this case in any meaningful way after its counsel withdrew on August 25, 2005. Mintech also failed to respond to the order to show cause, my warning that its failure to do so would result in a recommendation that the case be dismissed notwithstanding. It appears that Mintech has abandoned this litigation. Rule 41(b), Fed. R. Civ. P., provides that a district court may dismiss an action if the plaintiff fails " comply with [the Federal Rules of Civil Procedure] or any order of court." to Similarly, local rule of practice 41.1, D.C.COLO.LCivR, provides: A judicial officer may issue an order to show cause why a case should not be dismissed for lack of prosecution or for failure to comply with these rules, the Federal Rules of Civil Procedure, or any court order. If good cause is not shown within the time set in the show cause order, a district judge or a magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice. In connection with this recommendation, I have considered the factors set forth in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992), concerning (1) the amount of actual prejudice to the opposing party; (2) the degree of interference with the judicial process; (3) the litigant' culpability; (4) whether the litigant was warned in advance that dismissal was a likely s 3

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sanction; and (5) whether a lesser sanction would be effective. I conclude that the defendants have suffered actual prejudice by the plaintiff' failure to s obtain counsel and prosecute the case. Rule 1, Fed. R. Civ. P., provides that the rules will be construed and administered " secure the just, speedy, and inexpensive determination of every to action." That purpose is frustrated where, as here, the plaintiff refuses to prosecute its case. In addition, the passage of time may make it difficult for the defendant to obtain evidence necessary to defend the case. The plaintiff' failure to prosecute also frustrates the judicial process by s bringing it to a standstill. The plaintiff alone is responsible for its failure to obtain substitute counsel and to prosecute the case. In addition, the plaintiff has been warned, including the express warning contained in the order to show cause, that dismissal was a likely sanction for its failure to comply with orders of the court. Finally, I conclude that no sanction less than dismissal will be effective. The plaintiff has demonstrated a complete unwillingness to comply with orders of the court. I respectfully RECOMMEND that the Rule be made absolute and that the plaintiff' s complaint and this action be DISMISSED WITH PREJUDICE for failure to prosecute and failure to comply with orders of the court. FURTHER, IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have 10 days after service of this recommendation to serve and file specific, written objections. A party' failure to serve and file specific, written objections waives de novo s review of the recommendation by the district judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. In 4

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s re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10th Cir 2000). A party' objections to this recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review. United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996). Dated December 1, 2005. BY THE COURT: /s/ Boyd N. Boland United States Magistrate Judge

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