Opinion
Civil Action 1:21-cv-00938-PAB-SBP
11-22-2023
CANDACE ELAINE SHERMAN, Plaintiff, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.
RECOMMENDATION TO GRANT DEFENDANT'S MOTION TO DISMISS
Susan Prose, United States Magistrate Judge.
This matter is before the court on the Motion to Dismiss with Prejudice Due to Plaintiff's Failure to Prosecute and Comply with Rules and this Court's Orders filed by Defendant Liberty Mutual Fire Insurance Company (“Liberty Mutual”), ECF No. 108 (the “Motion to Dismiss” or “Motion”). The Motion is referred to this court pursuant to 28 U.S.C. § 636(b), the Order Referring Case dated June 4, 2021 (ECF No. 18), and the Memorandum dated August 30, 2023 (ECF No. 109). For the reasons set forth below, this court respectfully RECOMMENDS that the Motion be GRANTED and the Complaint, ECF No. 4, be dismissed without prejudice.
BACKGROUND
Plaintiff Candace Elaine Sherman has been representing herself since October 4, 2021. See ECF No. 34, 10/4/2021 Minute Order (granting Ms. Sherman's attorney's motion to withdraw). Before that time, the parties exchanged initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) and participated in significant discovery. See ECF No. 28, Scheduling Order at 5, 8; see also 8/8/2023 Hearing Tr. at 9:45:55-9:46:04 (counsel for Liberty Mutual informing the court that it deposed Ms. Sherman while she was still represented by legal counsel). A final pretrial conference was originally scheduled for June 9, 2022, before Magistrate Judge Kristen L. Mix. ECF No. 27, 6/15/2021 Minute Order. At Ms. Sherman's request, the court granted her an extension of time to respond to Liberty Mutual's motion for summary judgment, and the final pretrial conference was vacated pending resolution of the motion. ECF No. 58, 5/31/2022 Minute Order. On January 27, 2023, the court granted the summary judgment motion in part and denied it in part. ECF No. 75, 1/27/2023 Order. The final pretrial conference was reset shortly thereafter for April 3, 2023. ECF No. 77, 1/31/2023 Minute Order. After Ms.
Neither party has ordered an official transcript of the August 8, 2023 proceeding. The transcriptions referenced in this order are based on this court's careful review of the audio recording.
Sherman filed an interlocutory appeal of the summary judgment order on February 1, 2023, ECF No. 78, the court again vacated the final pretrial conference. ECF No. 93, 3/24/2023 Minute Order. The Tenth Circuit Court of Appeals dismissed the interlocutory appeal on April 27, 2023. ECF No. 97, 4/27/2023 Mandate. The case was thereafter referred to the undersigned Magistrate Judge. ECF No. 98.
This court reset a final pretrial conference for July 20, 2023. ECF No. 99, 6/13/2023 Minute Order. At the request of counsel for Liberty Mutual (which was not opposed by Ms. Sherman), the court reset the final pretrial conference for August 8, 2023. ECF No. 102, 6/26/2023 Minute Order. The court's order made clear that the conference was to be conducted in-person, but that any party “who cannot reasonably make a personal appearance . . . may request to appear by telephone . . . by emailing chambers[.]” Id. The order also required that the parties file a proposed joint final pretrial order by August 1, 2023. Id.
Ms. Sherman failed to confer with counsel for Liberty Mutual to prepare the proposed joint final pretrial order. See ECF No. 103, Defendant's Final Proposed Pretrial Order at 1-2 (outlining defense counsel's attempts to obtain edits and additions from Ms. Sherman, to no avail). Liberty Mutual was forced to file its own proposed final pretrial order on August 1, 2023, which included no input and no exhibit or witness lists from Ms. Sherman. Id. On August 2, 2023, the court entered a minute order requiring Ms. Sherman to “submit her own pretrial order, including a list of the witnesses and exhibits she intends to use at trial, by 12:00 p.m. MST on 8/7/2023.” ECF No. 104. The court warned Ms. Sherman that failure to comply may result in a recommendation “that her case be dismissed with prejudice for lack of prosecution and failure to comply with court orders pursuant to D.C.COLO.LCivR 41.1.” Id. Ms. Sherman did not file a proposed final pretrial order by the required date, or thereafter.
Ms. Sherman also did not appear at the August 8, 2023 final pretrial conference, and she did not seek permission to attend the conference telephonically. Despite this, the court reached out to Ms. Sherman using the phone number on file with the Clerk's office. Ms. Sherman answered and telephonically participated in the conference, at least for a time. Before she severed the call, Ms. Sherman informed the court that she did not respond to Liberty Mutual's counsel because she had been sick. 8/8/2023 Hearing Tr. at 9:16:15-9:16:30. She admitted that she “kn[e]w [Defendant's counsel had] sent [her] some emails,” but stated that she “ha[d]n't even looked at them.” Id. at 9:26:04-9:27:40. She also informed the court that she had not accessed her ECF account which she obtained for use in this case “in a very long time,” and she needed to “dig up” her password to access the account moving forward. Id. at 9:24:56-9:25:02. When asked when she would be able to participate in the litigation of her case, Ms. Sherman responded that “[r]ight now, I am not even thinking about that[.]” Id. at 9:26:04-9:27:40.
At one point, Ms. Sherman indicated that she had to leave the call-even though she had been notified of the conference weeks earlier, on June 26, 2023, ECF No. 102-and hung up.
However, she informed the court that she was willing and able to communicate with counsel for Liberty Mutual via email to finalize an amended proposed final pretrial order. Id. at 9:29:479:59:59 (Q: “Do you think you can do that in two weeks?” A: “Yes.”). Based on Ms. Sherman's representation that she intended to move forward with the case, a three-day jury trial was scheduled for May 20, 2024, before Chief Judge Brimmer. ECF No. 106.
This court reset the final pretrial conference for September 11, 2023, and ordered Ms. Sherman to confer with counsel for Liberty Mutual to enable the parties to jointly submit a proposed final pretrial order by August 22, 2023. ECF No. 105, Courtroom Minutes at 1. The court ordered counsel for Liberty Mutual to email a copy of the Courtroom Minutes for the August 8, 2023 proceeding to Ms. Sherman as a courtesy, which counsel did. Id. at 2; see also ECF No. 107, Exhibit 1 (8/8/2023 email from counsel for Liberty Mutual to Ms. Sherman forwarding the Courtroom Minutes). The court once again warned Ms. Sherman that her failure to comply with the court's order could result in a recommendation “that her case be dismissed with prejudice for lack of prosecution and failure to comply with court orders pursuant to D.C.COLO.LCivR 41.1.” ECF No. 105 at 2.
On August 22, 2023, Liberty Mutual filed a notice outlining its numerous efforts to confer with Ms. Sherman, both before and after the August 8, 2023 final pretrial conference. ECF No. 107 ¶¶ 2, 10. Exhibit 2 to the notice reflects three separate attempts to contact Ms. Sherman: on August 8, August 17, and August 21, 2023. Id. at 1, 13-14. In her emails to Ms. Sherman, counsel for Liberty Mutual reminded Ms. Sherman of the August 22, 2023 deadline for submitting an amended joint final pretrial order. Id. at 1 (“The Amended Joint Pretrial Order with Plaintiff's and Defendant's witness and exhibit lists is required to be filed with the Court by our firm on or before August 22, 2023 .”) (emphasis in original); id. at 13 (“As you know, the Court, in our August 8, 2023 Pretrial Conference required your conferral on these documents for filing by August 22, 2023.”) (emphasis in original); id. at 14 (same). Ms. Sherman did not respond to any of these emails. ECF No. 107 ¶ 10. On August 30, 2023, Liberty Mutual filed the instant Motion to Dismiss, after which the court vacated the September 11, 2023 final pretrial conference. ECF No. 110. Ms. Sherman did not respond to the Motion.
Because Liberty Mutual has filed a motion to dismiss for failure to prosecute, the court does not utilize the procedure set forth in D.C.COLO.LCivR 41.1. See id. (“A judicial officer may issue an order to show cause why a case should not be dismissed for failure to prosecute or failure to comply with these rules, the Federal Rules of Civil Procedure, or a court order. If good cause is not shown, a district judge or a magistrate judge exercising consent jurisdiction may enter an order of dismissal with or without prejudice.”).
In the Motion, Liberty Mutual details its unsuccessful attempts to confer with Ms. Sherman. Liberty Mutual asserts that the action should be dismissed because “Plaintiff has failed and refused to prosecute this action, has failed and refused to comply with her pretrial disclosure obligations under the Federal Rules of Civil Procedure, and has failed and refused to comply with repeated orders of this Court.” Id. at 6. This court respectfully agrees.
ANALYSIS
Under Rule 41(b) of the Federal Rules of Civil Procedure, “[i]f the plaintiff fails to prosecute or to comply” with the Federal Rules “or a court order,” a defendant “may move to dismiss the action or any claim against it.” Id. In considering whether to dismiss a case with prejudice under Rule 41(b), the court must assess: “(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 would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). While the court finds that all five Ehrenhaus factors weigh in favor of dismissal, it concludes that dismissal without prejudice is appropriate under the circumstances here.
The Tenth Circuit allows district courts to dismiss claims under Rule 41(b) “‘without attention to any particular procedures' only when the dismissal is without prejudice.” Antonetti v. Santistefan, No. 23-2060, 2023 WL 5273768, at *1 (10th Cir. Aug. 16, 2023) (quoting Nasious v. Two UnknownB.I.C.E. Agents, 492 F.3d 1158, 1143 (10th Cir. 2007)) (emphasis in original). “Before dismissing with prejudice, on the other hand, district courts ‘must' consider the Ehrenhaus factors.” Id. (citation omitted) (emphasis in original).
Actual prejudice to the defendant. Ms. Sherman's failure to comply with the court's orders and to comply with her pre-trial obligations has prejudiced Liberty Mutual. Liberty Mutual has never received Ms. Sherman's exhibit or witness lists to allow the defense to prepare for trial. Counsel for Liberty Mutual has expended time and resources in attempting to contact Ms. Sherman multiple times, in attending conferences with the court for which Ms. Sherman was unprepared, and in briefing the court on Ms. Sherman's non-compliance. Ms. Sherman failed to respond to the Motion and never sought to explain why she has failed to comply with the court's orders.
The court notes that, while it has no specific information from Liberty Mutual concerning the exact amount of its attorney's fees, it is obvious that the significant expenditure of attorney time necessitated by Ms. Sherman's actions has increased the attorney's fees Liberty Mutual must bear. See Ehrenhaus, 965 F.2d at 921 (actual prejudice can include “delay and mounting attorney's fees”). The court therefore concludes that Liberty Mutual has suffered actual prejudice.
Interference with the judicial process. Ms. Sherman's conduct has impeded the just, speedy, and inexpensive determination of this matter. This court, like Liberty Mutual, has invested time and resources overseeing the case and unsuccessfully attempting to facilitate Ms. Sherman's compliance with her pretrial obligations. Her failure to comply has required the court to reschedule the final pretrial conference two times and to review and rule on the current Motion to Dismiss. In short, Ms. Sherman has increased the workload of the court and has interfered with the judicial process.
The culpability of the plaintiff. The record in this matter demonstrates that Ms. Sherman is responsible for failing to obey court orders and for delaying the progress of this case.
The court is mindful that Ms. Sherman is not represented by counsel, but “that does not excuse [her] conduct here.” Gasper v. Hartley, No. 08-cv-01749-LTB-KLM, 2009 WL 1139546, at *3 (D. Colo. Apr. 28, 2009) (internal citation omitted). A pro se party must still “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). Ms. Sherman has had numerous opportunities to fulfill her pretrial obligations. Rather than vacate the final pretrial conference after discovering Ms. Sherman's failure to cooperate in drafting the final pretrial order, the court granted Ms. Sherman additional time to submit her own final pretrial order, including her exhibit and witness lists. ECF No. 104. And even after Ms. Sherman failed to appear at the final pretrial conference, the court went out of its way to ensure her participation. ECF No. 105 at 1. The court then gave Ms. Sherman an additional two weeks to complete her portion of the final pretrial order, based on her representation that she would be able to meet that deadline. Id. at 2. After that, counsel for Liberty Mutual repeatedly continued to reach out to Ms. Sherman, providing her a copy of the Courtroom Minutes and the final pretrial order form. ECF No. 107, Exhibit 2. Ms. Sherman failed to respond to any of these communications.
Furthermore, Ms. Sherman has violated at least three court orders. She did not submit her own proposed final pretrial order with witness and exhibit lists, as she was ordered to do on August 2, 2023, ECF No. 104. She did not appear for the final pretrial conference on August 8, 2023, see id., and only recalcitrantly participated after the court reached out to her. She did not work with defense counsel to complete the preparation of a proposed final pretrial order, ECF No. 105, despite many attempts by counsel for Liberty Mutual to reach out to her. Ms. Sherman-who admits to not “even thinking about” her case, 8/8/2023 Hearing Tr. at 9:26:04-9:27:40-bears responsibility for these actions.
The court's warnings. The court has warned Ms. Sherman at least twice that her failure to comply with the court's orders could result in dismissal of this action. On August 2, 2023, the court entered a written order that included the following language:
The court notes that Plaintiff is required to participate in the 8/8/2023 Pretrial Conference, even as a pro se litigant. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2008) (“[Litigant's] pro se status does not relieve [them] of the obligation to comply with procedural rules.”). Accordingly, Plaintiff is hereby ORDERED to submit her own proposed pretrial order, including a list of the witnesses and exhibits she intends to use at trial, by 12:00 p.m. MST on 8/7/2023. If Plaintiff fails to do so, this court may recommend that her case be dismissed with prejudice for lack of prosecution and failure to comply with court orders pursuant to D.C.COLO.LCivR 41.1.ECF No. 104 (emphasis in original). The court reiterated this warning in the written minutes of the August 8, 2023 final pretrial conference, which the court reset to September 11, 2023, as a courtesy to Ms. Sherman:
Plaintiff is required to participate in the preparation of a Final Pretrial Order and in the Final Pretrial Conference scheduled for September 11, 2023, even as a pro se litigant. See Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2008) (“[Litigant's] pro se status does not relieve [them] of the obligation to comply with procedural rules.”). If Plaintiff fails to do so, this court may recommend that her case be dismissed with prejudice for lack of prosecution and failure to comply with court orders pursuant to D.C.COLO.LCivR 41.1.ECF No. 105 at 2 (emphasis in original). For added emphasis, the court verbally informed Ms. Sherman at the August 8, 2022 final pretrial conference-after the court managed to get Ms. Sherman on the phone-that she bears responsibility for litigating her case and moving it forward. 8/8/2023 Hearing Tr. at 9:28:15-9:28:22 (“If you want to continue to litigate your case then you need to do that. The court can't litigate the case for you.”).
Efficacy of lesser sanctions. In recommending that this action be dismissed, the court bears in mind that dismissal “represents an extreme sanction appropriate only in cases of willful misconduct.” Ehrenhaus, 965 F.2d at 920. Yet, the court cannot conceive of a lesser sanction that would be effective in this case. Ms. Sherman has repeatedly disobeyed court orders. She has repeatedly failed to communicate with defense counsel-who, by any measure, have treated her graciously and with extreme patience. Ms. Sherman's effective absence from these proceedings in recent months has prevented Liberty Mutual from preparing its case for trial and has caused it to incur unnecessary attorney's fees. Too, Ms. Sherman's actions have harmed this court by interfering with the effective management of its docket. This court has dedicated court time to conferences that have gone nowhere because of Ms. Sherman's non-participation, and it also has spent significant time producing written orders (including this recommendation) in response to Ms. Sherman's demonstrable indifference to this litigation.
In light of these circumstances, the court respectfully concludes that no sanction less than dismissal would be effective. It is apparent that further orders to compel are likely to be futile, given Ms. Sherman's pattern of behavior to date. See Davis v. Fed. Bureau of Prisons, No. 15-cv-0884-WJM-NRN, 2018 WL 10466849, at *6 (D. Colo. Nov. 16, 2018), aff'd, 798 Fed.Appx. 274 (10th Cir. 2020). And it seems equally probable that monetary sanctions against Ms. Sherman would be meaningless, where there is nothing in the record to indicate that Ms. Sherman has any ability to pay. See id. Dismissal is therefore the appropriate sanction.
Even so, the court declines to recommend dismissal with prejudice, as Liberty Mutual requests. See Motion at 1. “Because dismissal with prejudice defeats altogether a litigant's right to access the courts, it should be used as a weapon of last, rather than first, resort.” Ehrenhaus, 965 F.2d at 920 (internal quotation marks omitted). Notably, in cases where the Tenth Circuit has upheld dismissal with prejudice for failure to prosecute, there have been aggravating factors, such as previously filed (and previously dismissed) actions involving the same conduct, see Schroeder v. Southwest Airlines, 129 Fed.Appx. 481, 485 (10th Cir. 2005), or loss of evidence as a result of discovery delays, see Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1150 (10th Cir. 2007). While Ms. Sherman's conduct here is no cause for praise, neither is there evidence of aggravating conduct rising to a level that would warrant dismissal with prejudice. In sum, having carefully considered the full record here, the court finds that dismissal with prejudice is “too harsh a remedy[.]” Rodriguez-Diaz v. Gallegos Masonry Inc., No. 12-cv-03015-MEH, 2013 WL 1397291, at *5 (D. Colo. Apr. 5, 2013).
CONCLUSION
For the foregoing reasons, the court respectfully RECOMMENDS that the Motion to Dismiss, ECF No. 108, be granted, and the Complaint be dismissed without prejudice.
Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after service of a Magistrate Judge's order or recommendation, any party may serve and file written objections with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. §§ 636(b)(1)(A), (B); Fed.R.Civ.P. 72(a), (b). Failure to make any such objection will result in a waiver of the right to appeal the Magistrate Judge's order or recommendation. See Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
Although Ms. Sherman has electronic filing privileges, as a courtesy, a copy of this Recommendation shall be mailed to:
Candace Elaine Sherman 6350 Genesse Avenue Suite 303 San Diego, CA 92122 And emailed to Ms. Sherman at: cs51@icloud.com