United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
Amanda Darr initiated this action on February 23, 2018, in
the District Court of Oklahoma County, Oklahoma, alleging
violations of the Americans with Disabilities Act and the
Oklahoma Anti-Discrimination Act. See Doc. No. 1-1.
Because Plaintiff has failed to comply with this Courtâs
orders and applicable rules, the Court now dismisses the
action without prejudice.
the removal of this action, Plaintiff’s attorneys
requested permission to withdraw as counsel of record for
Plaintiff. See Doc. No. 28. The Court granted this
request on March 6, 2019, with the stipulation that the
attorneys forward all subsequent pleadings, papers, and
orders to Plaintiff until Plaintiff appeared pro se or
retained new counsel. The Court stayed all deadlines for 30
days and directed Plaintiff to either engage replacement
counsel or to file a pro se appearance within that time.
See Id . at 1-2. Plaintiff failed to comply with
this Order. However, on May 3, 2019, the Court sua sponte
granted Plaintiff an extension of time until May 17, 2019, to
file a pro se entry of appearance or to retain new counsel.
See Doc. No. 30. Plaintiff entered her appearance on
May 17, 2019, see Doc. No. 31, and has been
proceeding pro se in this matter since that time.
Plaintiff’s pro se appearance, the Court issued a
Second Amended Scheduling Order that directed Plaintiff to
file her final lists of witnesses, expert witnesses, and
exhibits, as well as expert reports, on or before June 13,
2019, to complete discovery by August 1, 2019, and to file a
Final Pretrial Report with Defendant on or before August 22,
2019. See Doc. No. 32. As of this date, Plaintiff
has failed to meet any of her discovery obligations set forth
in the Court’s Second Amended Scheduling Order or to
request additional time in which to do so. Additionally,
Defendant advises the Court that Plaintiff failed to appear
for her scheduled depositions or to contribute to the Final
Pretrial Report, despite Defendant’s multiple attempts
to communicate with Plaintiff regarding these obligations.
See Doc. No. 37 at 13-16; Doc. No. 39 at 1-2.
August 26, 2019, the Court ordered Plaintiff to show cause
within seven days for her failure to prosecute this action or
comply with the Court’s scheduling order. See
Doc. No. 40. The Court’s show cause order was mailed to
Plaintiff at her address of record. As of this date,
Plaintiff has not submitted a response to the show cause
order, requested an extension of time to comply with the show
cause order, or otherwise contacted the Court regarding this
Federal Rule of Civil Procedure 41(b), if a plaintiff
“fails to prosecute or to comply with these rules or a
court order, ” the Court may dismiss the action.
See Fed. R. Civ. P. 41(b). The Tenth Circuit
“ha[s] consistently interpreted Rule 41(b) to permit
courts to dismiss actions sua sponte for a plaintiff’s
failure to prosecute.” Huggins v. Supreme Court of
U.S., 480 Fed.Appx. 915, 916-17 (10th Cir. 2012)
(internal quotation marks omitted); see also AdvantEdge
Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc.,
552 F.3d 1233, 1236 (10th Cir. 2009) (“A district court
undoubtedly has discretion to sanction a party for failing to
prosecute or defend a case, or for failing to comply with
local or federal procedural rules.” (internal quotation
marks omitted)). If the dismissal is without prejudice, the
Court generally need not follow any “particular
procedures” in entering the dismissal order.
AdvantEdge Bus. Grp., 552 F.3d at 1236 (internal
quotation marks omitted); see Robledo-Valdez v.
Smelser, 593 Fed.Appx. 771, 775 (10th Cir. 2014).
failure to prosecute her action and to comply with the
Court’s orders leaves the Court unable “to
achieve [an] orderly and expeditious” resolution of
this action. Link v. Wabash R.R. Co., 370 U.S. 626,
629-31 (1962) (discussing the inherent power of a court to
dismiss suits for lack of prosecution on its own initiative).
this action is DISMISSED WITHOUT PREJUDICE.
 The Tenth Circuit “has
recognized that a dismissal without prejudice can have the
practical effect of a dismissal with prejudice if the statue
of limitations has expired.” AdvantEdge Bus.
Grp., 552 F.3d at 1236. Even if the statute of
limitations has run on Plaintiff’s claims, the Court
has considered the applicable factors for a Rule 41(b)
dismissal with prejudice and has determined that an effective
dismissal with prejudice is warranted in this matter. See
Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497
F.3d 1135, 1143 (10th Cir. 2007) (delineating non-exhaustive
list of factors, including “(1) the degree of actual
prejudice to the other party; (2) the amount of interference
with the judicial process; (3) the litigant’s
culpability; (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”). Plaintiffs failure to participate in the
discovery process-including her failure to appear for her
scheduled depositions or submit witness and exhibit lists-has
prejudiced Defendant by hindering its ability to litigate
this matter. Plaintiffs conduct has also caused significant
interference with the judicial process, as she has failed to
meet any discovery deadlines or to “communicate in a
timely and responsive fashion with defendants during the
discovery period.” Id. at 1146; see
Doc. No. 37 at 13-16; Doc. No. 39 at 1-2. Further, nothing in
the record indicates Plaintiff is other than personally
responsible for her failure to prosecute this matter or
comply with the Court’s orders. For example, there is
no indication that Plaintiff did not receive the
Court’s orders or Defendant’s communications or
that Plaintiff made any efforts to explain or rectify her