Opinion
Case No. 02-2042-JWL
April 18, 2002
MEMORANDUM AND ORDER
This matter is presently before the court on motions to dismiss plaintiff's complaint for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6) filed by defendants All American Auto Mart, Inc. and Kevin Irish (Doc. 8), Social and Rehabilitative Services (SRS) (Doc. 10), K W Underground, Inc. (Doc. 12), Social Security Administration (Doc. 15), Olathe Police and Joe Pruitt (Doc. 17), Lenexa Police (Doc. 20), The Firm Athletic Club, Inc. (Doc. 22), Shawnee Mission Unified School District No. 512 (Doc. 24), Olathe Northview Elementary School (Doc. 26) and Scott Toth (Doc. 29), and on motions for sanctions against plaintiff pursuant to Rule 11 filed by All American Auto Mart, Inc. and Kevin Irish (Doc. 6) and Shawnee Mission Unified School District No. 512 (Doc. 24). For the reasons set forth below, defendants' motions to dismiss are granted and defendants' motions for sanctions are denied.
A number of defendants also move to dismiss plaintiff's claim for several other reasons but, in light of the court's holding regarding defendants' motions to dismiss for failure to state a claim, the court does not reach those issues.
Motions to Dismiss
Between February 7, 2002 and March 5, 2002, numerous defendants filed motions to dismiss plaintiff's complaint. Pursuant to Local Rule 6.1(e)(2), a party has 20 days to respond to a motion to dismiss or for summary judgment. Pursuant to Local Rule 7.4, "[i]f a respondent fails to file a response within the time required by Rule [6.1(e)], the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice."
On April 2, 2002, after plaintiff failed to respond to defendants' motions to dismiss, this court issued an order directing plaintiff to show good cause in writing to the court, on or before April 12, 2002, why it failed to respond to defendants' motions within the period of time dictated by Rule 6.1 and directing plaintiff to respond to defendants' motions to dismiss on or before April 12, 2002. In that order, the court cautioned plaintiff that if it failed to respond to the motions to dismiss on or before April 12, 2002, then the motions would be considered and decided as uncontested motions, and ordinarily would be granted without further notice pursuant to Local Rule 7.4.
Plaintiff failed to file a response to the court's show cause order and defendants' motions to dismiss on or before April 12, 2002. Thus, the court considers defendants' motions to dismiss as uncontested and, accordingly, grants the motions. 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 defendants' motions to dismiss nor has he contacted the court in any way regarding this case. Plaintiff's failure to respond to defendants' motions in any way 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, denying defendants' motions would prejudice defendants 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, denying defendants' motions 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 15-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 grants defendants' motions to dismiss. 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).
Motions for Sanctions
Defendants All American Auto Mart, Inc. and Kevin Irish, and Shawnee Mission Unified School District filed motions for sanctions pursuant to Federal Rule of Civil Procedure 11. Rule 11(c) permits a court to impose sanctions on a party if, "after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated. . . ." Rule 11(b) sets out a number of requirements that a party presenting "a pleading, written motion, or other paper" to the court must comply with.
Rule 11(c)(1)(A) explains how a party seeking sanctions must initiate a Rule 11 motion. First, the motion for sanctions "shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b)." Second, the motion "shall be served as provided by Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected."
In the instant action, defendants All American Auto Mart, Inc. and Kevin Irish, and Shawnee Mission Unified School District have failed to comply with the requirements of Rule 11. Defendant Shawnee Mission Unified School District failed to file a separate motion for sanctions and Shawnee Mission Unified School District, All American Auto Mart, Inc. and Kevin Irish failed to serve the motions for sanctions on plaintiff 21 days before filing them with this court. The plain language of Rule 11 states that the provisions are mandatory. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 391 (199) (construing Rule 11 in accordance with its plain meaning); Karara v. Czopek, No. 95-1361, 1996 WL 330260, at *2 (10th Cir. 1996) (reversing the district court's holding that Rule 11 sanctions were warranted because the defendant conceded that it did not comply with the separate motion and 21 day waiting period requirements of Rule 11) (citing Johnson v. Waddell Reed, Inc., 74 F.3d 147, 151 (7th Cir. 1996); Elliott v. Tilton, 64 F.3d 213, 216 (5th Cir. 1995); Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1328-29 (2d Cir. 1995)). Accordingly, the Rule 11 motions for sanctions in the form of attorneys' fees and costs are denied.
IT IS THEREFORE ORDERED BY THE COURT THAT the motions to dismiss plaintiff's complaint filed by defendants All American Auto Mart, Inc. and Kevin Irish (Doc. 8), SRS (Doc. 10), K W Underground, Inc. (Doc. 12), Social Security Administration (Doc. 15), Olathe Police and Joe Pruitt (Doc. 17), Lenexa Police (Doc. 20), The Firm Athletic Club, Inc. (Doc. 22), Shawnee Mission Unified School District No. 512 (Doc. 24), Olathe Northview Elementary School (Doc. 26) and Scott Toth (Doc. 29), (Doc.) are granted.
The motions for sanctions against plaintiff pursuant to Rule 11 filed by All American Auto Mart, Inc. and Kevin Irish (Doc. 6) and Shawnee Mission Unified School District No. 512 (Doc. 24) are denied.
IT IS SO ORDERED.