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 “[#21]” is an example of the convention I use to identify the docket number assigned to a

specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this

convention throughout this order.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Robert E. Blackburn

Civil Case No. 11-cv-02720-REB-CBS

JOSE ARGUETA-PEREIRA,

Plaintiff,

v.

JOSE BRUNO OCHOA,

Defendant.

ORDER OF DISMISSAL

Blackburn, J.

This matter is before the court sua sponte. On June 29, 2012, the court entered

an Order To Show Cause [#21]1

. In that order the plaintiff was directed to show cause

in writing why the claims against the sole remaining defendant, Jose Burno Ochoa,

should not be dismissed under FED. R. CIV. P. 4(m) and 41(b). To date the plaintiff has

not responded to the Order To Show Cause [#21]. I make the order to show cause

absolute and dismiss this case.

I. JURISDICTION 

I have subject matter jurisdiction over this case under 28 U.S.C. § 1332

(diversity). 

II. ANALYSIS

This case was filed on October 19, 2011. Approximately one year later, nothing

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in the record shows that the plaintiff has served or attempted to serve the defendant,

Jose Bruno Ochoa. Approximately one year later, nothing in the record shows that the

plaintiff has taken any action, other than filing the complaint, to prosecute his claim

against Jose Bruno Ochoa. Under FED. R. CIV. P. 4(m), an action against a defendant

is subject to dismissal if the “defendant is not served within 120 days after the complaint

is filed . . . .” Under FED. R. CIV. P. 41(b), the court may dismiss a claim or claims

based on the plaintiff’s failure to prosecute those claims. This case is subject to

dismissal under both FED. R. CIV. P. 4(m) and 41(b). For purposes of this order, I view

Mr. Argueta-Periera’s failure to serve Mr. Ochoa as one type of inaction that constitutes

failure to prosecute.

In determining whether dismissal as a sanction for a party’s failure to prosecute

is appropriate, I must evaluate several 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 non-compliance; and (5) the efficacy of

lesser sanctions.

Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002), citing Ehrenhaus v.

Reynolds, 965 F.2d 916, 918 (10th Cir. 1992). These criteria are known as the

Ehrenhaus factors. “These factors do not create a rigid test; rather, they represent

criteria for the district court to consider prior to imposing dismissal as a sanction.” 

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). Dismissal is an

appropriate sanction if, after considering all of the factors, the court “concludes that

dismissal alone would satisfy the interests of justice.” Id. Applying these factors, I

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conclude that dismissal is an appropriate sanction in this case.

1. Degree of actual prejudice to the defendant - There is no indication that the unserved defendant, Mr. Ochoa, has suffered any prejudice as a result of the pendency of

this lawsuit and the failure to prosecute this case. 

2. Amount of interference with the judicial process - Mr. Argueta-Periera’s filing of

this lawsuit, and his subsequent failure to serve Mr. Ochoa or otherwise to prosecute his

claim against Mr. Ochoa, has interfered with the judicial process. Progress toward the

resolution of this case has been brought to a total standstill by Mr. Argueta-Periera’s

inexplicable and unexcused failure to serve Mr. Ochoa or otherwise to prosecute his

claim against Mr. Ochoa. Mr. Argueta-Periera’s interference with the judicial process is

exacerbated by the fact that he failed to respond in any way to the court’s Order To

Show Cause [#21]. Mr. Argueta-Periera’s inaction has “hindered the court’s

management of its docket . . . ..” Mobley v. McCormick, 160 F.R.D. 599, 601 (D. Colo.

1995) (quoting Jones v. Thompson, 996 F.2d 261, 265 (10th Cir. 1993)).

3. The plaintiff’s cupability - Without explanation, Mr. Argueta-Periera failed to

serve a defendant he named in this lawsuit, failed otherwise to prosecute his claim

against that defendant, and failed to respond to the court’s Order To Show Cause [#21]. 

Nothing in the record shows that there is any valid reason for Mr. Argueta-Periera’s

inaction or intransigence. Therefore, I find that Mr. Argueta-Periera has intentionally

disregarded his obligation to comply with the Federal Rules of Civil Procedure and the

orders of this court.

4. Warning that dismissal is a sanction for non-compliance - In the court’s Order

To Show Cause [#21], Mr. Argueta-Periera was warned explicitly that dismissal of this

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case is a possible sanction for his failure to serve the defendant and failure to prosecute

this case. Mr. Argueta-Periera has been given ample warning that dismissal is the likely

sanction for his refusal to serve the defendant and to prosecute this case.

5. Efficacy of lesser sanctions - Mr. Argueta-Periera has been given ample

opportunity to serve the defendant and to prosecute this case. His inaction, including his

refusal to respond to the Order To Show Cause [#21], shows that lesser sanctions

would likely have no effect on Mr. Argueta-Periera. I conclude that it is highly unlikely

that any sanction short of dismissal would motivate Mr. Argueta-Periera to comply with

his obligations in this case.

III. CONCLUSION & ORDERS

Dismissal is an appropriate sanction when “the aggravating factors outweigh the

judicial system’s strong predisposition to resolve cases on their merits. . . .” Ehrenhaus,

965 F.2d at 916 (quoting Meade v. Grubbs, 841 F.2d 1512, 1521 n. 7 (10th Cir. 1988)). 

In this case, four of the five of the relevant factors weigh heavily in favor of dismissal as a

sanction for Mr. Argueta-Periera’s failure to prosecute this case. These aggravating

factors substantially outweigh the judicial system’s strong predisposition to resolve cases

on their merits. Applying the standards applicable under FED. R. CIV. P. 41, Gripe v.

City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002), and Ehrenhaus v. Reynolds, 

965 F.2d 916, 918 (10th Cir. 1992), I conclude that dismissal of this case with prejudice

is the appropriate sanction for Mr. Argueta-Periera’s failure to prosecute this case.

THEREFORE, IT IS ORDERED as follows:

1. That under FED. R. CIV. P. 41(b), the plaintiff’s claims against defendant Jose

Bruno Ochoa are DISMISSED with prejudice;

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2. That JUDGMENT SHALL ENTER in favor of the defendant, Jose Bruno

Ochoa, and against the plaintiff, Jose Argueta-Pereira;

3. That the defendant, Jose Bruno Ochoa, is AWARDED his costs, to be taxed

by the clerk of the court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and

4. That this case is CLOSED.

Dated October 29, 2012, at Denver, Colorado.

BY THE COURT: 

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