Brown v. Gray

IN THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF UTAH, CENTRAL DIVISION

ROBERT LOUIS BROWN,

ORDER DENYING MOTION FOR

SETTLEMENT [ECF 6]

AND

REPORT AND RECOMMENDATION

Plaintiff,

Case No. 2:24-cv-00035-TC-CMR

v.

District Judge Tena Campbell

JEFFREY S. GRAY, Magistrate Judge Cecilia M. Romero

Defendant.

I. BACKGROUND

This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) (ECF 4).

On January 16, 2024, pro se Plaintiff Robert Louis Brown (Plaintiff) filed his Complaint against

Defendant Jeffrey S. Gray (Defendant) (ECF 1). On March 18, 2024, Plaintiff filed a Motion to

Dismiss (ECF 5) asking this court to dismiss his criminal case in state court. On April 9, 2024,

Plaintiff filed a Motion for Settlement (ECF 6), which appears to ask the court to order a settlement

and to grant him declaratory and monetary relief. Plaintiff filed two other motions (ECF 7; ECF

8), which both appear to be requests to submit his pending motions for decision. On July 19, 2024,

the court issued an Order to Show Cause (ECF 10) (Order) directing Plaintiff to explain why this

case should not be dismissed for failure to serve Defendant and failure to prosecute by August 2,

2024. The Order warned Plaintiff that failure to timely respond may result in dismissal of this

action (Id.). As of the date of this Report and Recommendation, Plaintiff has not responded to the

Order, served Defendant, or taken any other action in this matter.

II. DISCUSSION

Federal Rule of Civil Procedure 41(b) allows involuntary dismissal of an action “[i]f the

plaintiff fails to prosecute or to comply with . . . a court order.” Fed. R. Civ. P. 41(b); see also

DUCivR 41-2 (allowing dismissal for failure to prosecute). This court may dismiss actions sua

sponte for failure to prosecute. See Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)

(“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’s failure

to prosecute or comply with the rules of civil procedure or court orders.”); see also Link v. Wabash

R. Co., 370 U.S. 626, 630 (1962) (noting courts have inherent authority to clear “their calendars

of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking

relief”). In determining whether dismissal is appropriate, the court considers the following factors:

(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 of the action would be a likely sanction

for noncompliance; and (5) the efficacy of lesser sanctions.

Olsen, 333 F.3d at 1204 (quoting Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994)).

Here, all factors weigh in favor of dismissal. This matter has been pending since January

16, 2024, and the time to serve Defendant expired on April 15, 2024. Plaintiff failed to comply

with the Order’s directive to explain the reason for his failure to timely serve Defendant and failure

to prosecute this case (ECF 10). Plaintiff failed to file any response to the Order despite a clear

warning from the court that this case could be dismissed for failure to timely respond. Moreover,

none of Plaintiff’s prior filings provide any reason for the delay in serving Defendant or any basis

to support a finding of good cause to extend the time for service. See Fed. R. Civ. P. 4(m).

Plaintiff’s failure to move this matter along interferes with the judicial process, and his culpability

in failing to prosecute this matter is high. There appears to be no effective lesser sanction, and

there would be little to no actual prejudice to Defendant where he has not yet been served. In

consideration of these factors and given that Plaintiff’s failure to prosecute is coupled with a failure

to abide by the court’s Order, the court finds that the circumstances in this case warrant dismissal.

In addition, the court finds that Plaintiff’s filings in this case are procedurally improper,

lack any legal authority, and appear to be based on meritless arguments. Because Defendant has

not been served, ordering settlement or any substantive relief, as requested by Plaintiff in the

Motion for Settlement (ECF 6), or addressing the Motion to Dismiss is improper (ECF 5). The

court therefore DENIES the Motion for Settlement (ECF 6) and RECOMMENDS the Motion to

Dismiss (ECF 5) be DENIED.

ORDER

For the foregoing reasons, the court hereby DENIES Plaintiff’s Motion for Settlement

(ECF 6).

RECOMMENDATION

Based on Plaintiff’s failure to prosecute this case, the undersigned RECOMMENDS that

the court DENY Plaintiff’s Motion to Dismiss (ECF 5) and DISMISS this case without prejudice.

NOTICE

Copies of the foregoing Report and Recommendation are being sent to all parties who are

hereby notified of their right to object. Within fourteen (14) days of being served with a copy,

any party may serve and file written objections. See Fed. R. Civ. P. 72(b)(). Failure to object

may constitute a waiver of objections upon subsequent review.

DATED this 18 October 2024.

Magistrate Judge Cecilia M. Romero

United States District Court for the District of Utah