United States District Court, D. Kansas
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
KATHRYN H. VRATIL United States District Judge
pro se Rodshae Watkins filed suit alleging
employment discrimination, retaliation and defamation. After
litigation commenced, plaintiff failed to attend
court-ordered mediation. This matter comes before the Court
on Defendant's Motion To Dismiss Plaintiff's
Complaint For Failure To Prosecute Or, In The Alternative,
For Sanctions (Doc. #39) filed September 24, 2019.
Plaintiff did not respond to defendant's motion. For
reasons set forth below, the Court finds that dismissal is
inappropriate at this time. The Court, however, orders
plaintiff to show cause in writing on or before November 25,
2019 why it should not impose other sanctions.
February 2018 through June 2018, plaintiff worked for
defendant. Complaint (Doc. #1) filed February 28,
2019. On or about June 22, 2018, defendant terminated
plaintiff's employment. Id. On February 28,
2019, plaintiff filed a complaint alleging employment
discrimination, retaliatory discharge and defamation.
Id. On June 7, 2019, the Court set a mediation
deadline of September 13, 2019. Scheduling Order
(Doc. #18). On July 12, 2019, the parties gave the Court
notice that they had scheduled mediation for August 29, 2019.
Designation of Mediator (Doc. #23). On August 21,
2019, plaintiff's attorney moved to withdraw as counsel
due to a “total breakdown in communication between
attorney and client.” Amended Motion To Withdraw As
Counsel Of Record With Supporting Suggestions (Doc.
#30). On August 22, 2019, the Court granted attorney's
motion and notified plaintiff that she was still expected
“to continue to participate in this case and meet the
deadlines set forth in the scheduling order, whether she
proceeds pro se or retains new counsel.”
Order (Doc. #32). The Court also ordered plaintiff
to participate in the upcoming mediation. Id.
August 29, 2019, plaintiff did not attend the scheduled
mediation and did not provide notice of her absence to either
the mediator or defendant. Defendant's Motion
(Doc. #39) at 2. On September 24, 2019, defendant filed this
motion seeking dismissal for failure to prosecute under
Fed.R.Civ.P. 41(b), or in the alternative, for sanctions
under D. Kan. Rule 16(c)(5) and Fed. R. Civ. P 16(f).
Id. at 3.
Court has discretion to sanction a party for failure to
comply with procedural or local rules. Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). The
Federal Rules of Civil Procedure authorize sanctions -
including dismissal - when a party fails to comply with court
orders or rules. See Fed.R.Civ.P. 41(b). Local rules
authorize sanctions pursuant to Rule 16(f) when a party fails
to attend court-ordered mediation. D. Kan. Rule
16.3(c). These rules apply equally to pro se
litigants and other litigants. Garrett v. Selby Connor
Maddux & Janner, 425 F.3d 836, 840 (10th Cir. 2005).
Rule 41(b), if plaintiff fails to comply with the Federal
Rules of Civil Procedure or a court order, defendant may move
to dismiss or the Court may sua sponte dismiss the action
with or without prejudice. See Davis v. Miller, 571
F.3d 1058, 1060 (10th Cir. 2009). Dismissal is a severe
sanction which the Court employs only as a last resort.
Id. at 1061. The Court considers the following
factors to determine whether dismissal is an appropriate
(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
Id. (citing Ehrenhaus v. Reynolds, 965 F.2d
916, 921 (10th Cir. 1992). Dismissal is appropriate if the
aggravating factors outweigh the judicial system's strong
predisposition to resolve cases on their merits. Id.
In many cases, however, lesser sanctions are sufficient to
deter future noncompliance. Id. at 920.
Rule 16(f), the Court has “broad discretion” to
impose lesser sanctions for a party's failure to comply
with court rules. In re Baker, 744 F.2d 1438, 1440
(10th Cir. 1984). Rule 16(f)(2) states that the Court
“must order” the party to pay reasonable expenses
incurred as a result of noncompliance, unless the
circumstances make an award of expenses unjust. Fed.R.Civ.P.
16(f)(2). Thus, the Court should consider the circumstances
surrounding the party's noncompliance to determine the
appropriate type and amount of sanctions. See e.g.,
Torres v. Kan. Heavy Constr., L.L.C., No.
17-2130-JAR, 2018 U.S. Dist. LEXIS 145827, at *15 (D. Kan.
Aug. 28, 2018) (reasons for noncompliance failed to establish
excusable neglect); McKenzie v. Citibank, No.
08-02510-JAR, 2009 U.S. Dist. LEXIS 114949, at *15 (D. Kan.
Dec. 8, 2009) (plaintiff given opportunity to file brief
addressing failure to appear at mediation).
Whether The Court Should Dismiss The Case With
Ehrenhaus factors counsel against dismissal for
failure to attend mediation on August 29, 2019. The first and
second factors weigh slightly in favor of dismissal. As to
the first factor, plaintiff's actions ...