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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02382-LTB-KLM

PENNY HOFFERT,

Plaintiff,

v.

DAVID R. POWELSON, 

POWER WORLD, LLC,

B.W.L. HOLDINGS, LLC,

B.W.L. PARTNERSHIP, LLLP,

TRAIL RIDGE MARINA,

FIVESTAR MARINA, INC.,

FIVESTAR RENTALS,

GRAND LAKE MOTOR SPORTS,

PHLARE ORGANIZATION, LLC,

GEEZER CLUBS, LLC,

TRI-R LEASING, LLC,

TRI-R SYSTEMS CORPORATION,

TRI-R HOLDINGS, LLC,

COLORADO SPRINGS WASTE AND RECYCLING, LLC,

DATAGUARD USA, LLC, and

TRM, LLC,

Defendants.

_____________________________________________________________________

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on the Order to Show Cause [Docket No. 50]. The

Court ordered Plaintiff to show cause as to “ why this matter should be dismissed due to

her failure to prosecute.” Order to Show Cause [#50] at 2. Plaintiff’s deadline for

compliance with the Order to Show Cause was May 2, 2012. Id. To date, Plaintiff has

neither filed a response nor informally contacted the Court in any manner.

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Although Plaintiff is proceeding in this lawsuit without an attorney, she bears the

responsibility of prosecuting her case with due diligence. The Court must liberally construe

pro se filings; however, pro se status does not excuse the obligation of any litigant to

comply with the same rules of procedure that govern other litigants. See Green v. Dorrell,

969 F.2d 915, 917 (10th Cir. 1992); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.

1994).

As noted in the Order to Show Cause, Defendants filed a Motion for Partial

Dismissal of Claims on December 14, 2011 [#43]. Pursuant to D.C.COLO.LCivR 7.1C. and

Fed. R. Civ. P. 6, Plaintiff’s Response was due on or before February 10, 2012. To date,

Plaintiff has not responded to the Motion for Partial Dismissal of Claims. Furthermore,

Plaintiff filed no objection to the Recommendation issued December 19, 2011 [#46]. In

fact, Plaintiff has not filed anything in connection with this case since returning the

summonses on November 14, 2011. See Summonses [#18-#34]. Plaintiff’s conduct

indicates to the Court that she no longer intends to prosecute this lawsuit. 

The Court warned Plaintiff in the Order to Show Cause that her failure to timely

comply with the instruction to respond would result in a recommendation that this matter

be dismissed due to Plaintiff’s failure to prosecute. [#50] at 2. Given Plaintiff’s failure to

comply with the instruction stated in the April 17, 2012 Minute Order, the Court considers

whether Plaintiff’s case should be dismissed as a sanction pursuant to Fed. R. Civ. P.

41(b). See Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1151 (10th Cir. 2007) (noting

that Court has inherent authority to consider sua sponte whether a case should be

involuntarily dismissed due to Plaintiff’s failure to prosecute); 9 Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2369, at 576-77 & n.1 (3d ed. 2008).

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 The Court notes that the standards for dismissal pursuant to Rule 37 and Rule 41(b) are

essentially the same. Mobley v. McCormick, 40 F.3d 337, 340-41 (10th Cir. 1994) (“[W]e see no

principled distinction between sanctions imposed for discovery violations and sanctions imposed

[pursuant to Rule 41(b), and] . . . involuntary dismissals should be determined by reference to the

Ehrenhaus criteria.”).

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In Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992), the Tenth Circuit

enumerated the factors to be considered when evaluating grounds for dismissal of an

action.1 The factors are: “(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. at 921 (internal

quotations and citations omitted); see also Gates Rubber Co. v. Bando Chems. Indus., 167

F.R.D. 90, 101 (D. Colo. 1996). “[D]ismissal is warranted when ‘the aggravating factors

outweigh the judicial system’s strong predisposition to resolve cases on their merits.’”

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1144 (10th Cir. 2007)

(quoting Ehrenhaus, 965 F.2d at 921). 

Here, it is clear that Plaintiff has no intention of seeking resolution of this matter on

the merits. Although service was effected on Defendants, who timely filed a motion to

dismiss, Plaintiff did not timely respond to the motion. More importantly, Plaintiff has

disobeyed a direct order of the Court by failing to file a response to the Order to Show

Cause regarding her intent to prosecute this case. These facts coupled with her complete

absence from the case since mid-November demonstrate that Plaintiff has abandoned her

lawsuit, and the above-stated Ehrenhaus factors weigh in favor of dismissal without

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 Dismissal with prejudice "represents an extreme sanction appropriate only in cases of

willful misconduct," and should be used "as a weapon of last, rather than first, resort." Ehrenhaus,

965 F.2d at 920; see Butler v. Butierres, 227 F. App'x 719, 720 (10th Cir. Feb. 2, 2007) (remanding

dismissal with prejudice for determination of willfulness).

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prejudice.2 Accordingly,

IT IS HEREBY ORDERED that the Order to Show Cause [#50] is MADE

ABSOLUTE. Thus,

IT IS HEREBY RECOMMENDED that Plaintiff’s Amended Complaint [#8] be

DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 41(b) for Plaintiff’s failure

to prosecute. 

IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall

have fourteen (14) days after service of this Recommendation to serve and file any written

objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. A party’s failure to serve and file specific, written objections waives de novo

review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,

474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal

questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.

Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review

by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73

F.3d 1057, 1060 (10th Cir. 1996). 

Dated: May 9, 2012

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