Watkins v. Correct Care Solutions, LLC

          MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

          KATHRYN H. VRATIL United States District Judge

         Plaintiff 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.

         Factual Background

         From 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.

         On 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.

         Legal Standard

         The 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).

         Under 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 sanction:

(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.

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.

         Under 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).

         Analysis

         I. Whether The Court Should Dismiss The Case With Prejudice

         The 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 ...