Opinion
Case No. 01-2205.
February 6, 2002.
MEMORANDUM AND ORDER
This matter is presently before the court on Magistrate Judge Waxse's notice and order to show cause (Doc. 12) why this case should not be dismissed for lack of prosecution as to the two remaining defendants in this case, Daniel Rosales and Neil's Finance Plaza. For the reasons set forth below, plaintiff's case is dismissed in its entirety for lack of prosecution.
On April 27, 2001, plaintiff filed his complaint against defendant's Daniel Rosales, Neil's Finance Plaza and Jay Wolfe Chrysler-Plymouth, Inc. ("Jay Wolf"). On December 12, 2001, after plaintiff failed to respond to defendant Jay Wolf's motion to dismiss, the court dismissed Jay Wolf from the lawsuit. Then, on January 10, 2002, Magistrate Judge Waxse issued an order to show cause, on or before January 28, 2002, why the remainder of this case should not be dismissed for lack of prosecution as to defendants Daniel Rosales and Neil's Finance Plaza.
Plaintiff failed to file a response to the show cause order on or before January 28, 2002. Accordingly, the case is dismissed in its entirety for lack of prosecution. In so holding, the court specifically concludes that certain aggravating factors present in this case outweigh the judicial system's strong predisposition to resolve cases on their merits. See Murray v. Archambo, 132 F.3d 609, 611 (10th Cir. 1998) (prior to outright dismissal for failure to comply with local court rules, court must consider the degree of actual prejudice to the respondent; the amount of interference with the judicial process; and the culpability of the litigant).
Specifically, the court notes that plaintiff, as of the date of this order, has still not responded to Magistrate Judge Waxse's order to show cause nor has he contacted the court in any way regarding this case. Plaintiff's failure to respond to the order to show cause and his failure to contact the court in any way demonstrates that his culpability is quite high. Compare id. (reversing district court's dismissal on uncontested motion where petitioner mailed his response more than three days prior to the deadline, demonstrating "little or no culpability on his part in causing the delay") and Hancock v. City of Oklahoma City, 857 F.2d 1394, 1396 (10th Cir. 1988) (petitioner herself was not guilty of any dereliction where petitioner's counsel overlooked motion and, therefore, failed to respond, resulting in delay of almost two weeks but, once discovered, responded promptly). Moreover, in such circumstances, prolonging the case would prejudice defendant in terms of continued time spent and expenses incurred on a case in which the plaintiff has shown no interest even after ample notice from the court. Similarly, permitting the case to go forward would interfere with the judicial process in terms of docket management and the need for a finality to litigation. In other words, the court should not have to continue to manage this case on its docket when plaintiff himself has taken no initiative to keep the case on the court's docket. Compare Murray, 132 F.3d at 611 (reversing district court's dismissal on uncontested motion where petitioner's response to motion was received one day after the fifteen-day deadline and no prejudice to respondents could have resulted from this delay, nor could it have caused interference with the judicial process) and Hancock, 857 F.2d at 1396 (where petitioner's counsel overlooked motion and, therefore, failed to respond, resulting in delay of almost two weeks but, once discovered, responded promptly, respondent would not have been prejudiced in any legal or equitable sense by court's consideration of response and any inconvenience to the court was not so severe a burden as to justify dismissal).
For the foregoing reasons, the court dismisses this action in its entirety for lack of prosecution. If plaintiff feels aggrieved by this ruling, he may file a motion to reconsider pursuant to Federal Rule of Civil Procedure 59(e) or 60. See D. Kan. Rule 7.3(a); Hancock, 857 F.2d at 1396 (court abused its discretion in denying petitioner's motion for reconsideration following dismissal as uncontested motion).
IT IS THEREFORE ORDERED BY THE COURT THAT this case is dismissed as to the remaining defendants, Daniel Rosales and Neil's Finance Plaza.
IT IS SO ORDERED.