1

 Pursuant to the Local Rules of Practice for the United States District Court for the

District of Colorado, “[a] judicial officer may issue an order to show cause why a case should

not be dismissed for lack of prosecution or for failure to comply with these rules, the Federal

Rules of Civil Procedure, or any court order.” D.C.COLO.LCivR 41.1. 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11–cv–02696–REB–KMT

THERESA L. DOWLING,

Plaintiff,

v. 

BLACK AND MCDONALD/CUSTOM LIGHTING SERVICES, 

Defendant.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This matter comes before the court on the Order to Show Cause (Doc. No. 20), entered

on February 27, 2012, relating to Plaintiff’s failure to (1) participate in a Fed. R. Civ. P. 26(f)

planning conference, (2) participate in preparing a proposed scheduling order, and (3) comply

with this court’s orders.1

 The court also considers herein “Defendant’s Motion for Leave to File

Surreply to Plaintiff’s Unopposed Amended Response to the Order to Show Cause.” (Doc. No.

82, filed July 25, 2012. [Mot. Leave File Surreply].) 

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 Although Defendant’s counsel maintains in his declaration that he attempted to email

Plaintiff at try33@hotmail.com (Sullivan Decl. ¶¶ 3, 6), this appears to be a typographical error,

as a review of the emails themselves plainly indicates that the emails were sent to

trry33@hotmail.com (id., Ex. B; see also id. ¶ 7). 

2

BACKGROUND 

Pursuant to the Order of Reference dated November 9, 2011, this civil action was

referred to the Magistrate Judge to, inter alia, “[c]onvene a scheduling conference under Fed. R.

Civ. P. 16(b) and enter a scheduling order meeting the requirements of D.C.COLO.LCivR 16.2.” 

(Doc. No. 8.) On December 14, 2011, the court issued its “Order Setting Rule 16(b) Scheduling

Conference and Rule 26(f) Planning Meeting.” (Doc. No. 13 [Order Setting Sched. Conf.].) 

Therein, the court set a Scheduling Conference for March 1, 2012. (Id. at 1.) The court also

ordered the parties to “confer in accordance with Fed. R. Civ. P. 26(f)” on or before February 9,

2012, and to file a proposed scheduling order on or before February 23, 2012. (Id. at 2.) 

On February 23, 2012, Defendant timely filed a proposed scheduling order. (Doc. No. 14

[Proposed Sched. Order].) Therein, Defendant noted that the Rule 26(f) planning meeting was

not held because, despite its numerous attempts to contact Plaintiff by mail, email, and

telephone, Plaintiff failed to communicate with counsel for Defendant. (Id.) ) More

specifically, on January 20, 2012, Defendant’s counsel sent a letter to Plaintiff via mail at the

address noted in Plaintiff’s Title VII Complaint (Doc. No. 1, filed Oct. 17, 2011), as well as via

email to trry33@hotmail.com,2

 proposing dates to conduct the Rule 26(f) planning meeting. 

(Doc. No. 14-1, Declaration of James C. Sullivan [Sullivan Decl.] ¶ 3; Ex. A.) Plaintiff never

responded to this letter. (Id. ¶ 4.) 

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After January 20, 2012, Defendant’s counsel made numerous attempts to reach Plaintiff

by phone by calling Plaintiff at the phone number listed in her Title VII Complaint. (Id. ¶ 5.) 

Plaintiff did not answer any of those phone calls, and because Plaintiff’s voicemail box was full,

Defendant’s counsel was unable to leave a message. (Id.) On at least five occasions,

Defendant’s counsel followed-up his phone calls to Plaintiff with an email. (Id. ¶ 6; Ex. B.) In

those emails, Defendant’s counsel again informed Plaintiff of the parties’ responsibility to

conduct a Rule 26(f) planning meeting prior to February 9, 2012. (Id.) Plaintiff never responded

to these emails or to Defendant’s counsel’s phone calls. (Id.) 

Beginning on February 3, 2012, Defendant’s counsel sent the above email messages to

another email address, trry33@gmail.com—the email address featured on the court’s CM/ECF

filing system. (Id. ¶ 7.) However, as with the trry33@hotmail.com address, Plaintiff never

responded to the emails sent to trry33@gmail.com. (Id.) 

On February 14, 2012, after the deadline for conducting the Rule 26(f) planning meeting

had passed, Defendant’s counsel sent a draft of its proposed scheduling order to Plaintiff via

Federal Express, mail, and email. (Id. ¶ 8.) Defendant’s counsel followed-up with Plaintiff via

email on February 17, 2012. (Id.) On February 21, 2012, Defendant’s counsel called Plaintiff at

the number listed in her Title VII Complaint with the same result—the call immediately rolled

over to voicemail, and, again, Plaintiff’s voicemail box was full. (Id.) Defendant’s counsel once

again followed up this phone call with an email requesting that Plaintiff contact him to provide

her input to the proposed scheduling order. (Id.) Plaintiff did not respond to any of this

correspondence regarding the proposed scheduling order. (Id. ¶¶ 9-10.) Accordingly,

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Defendant’s counsel was forced to file the proposed scheduling order without any input from

Plaintiff. (See Proposed Scheduling Order.) 

Plaintiff bears the responsibility of complying with court orders and prosecuting her case. 

Here, by utterly failing to communicate with Defendant’s counsel regarding the Rule 26(f)

planning meeting and the proposed scheduling order, Plaintiff failed to comply with this court’s

Order Setting Rule 16(b) Scheduling Conference and Rule 26(f) Planning Meeting. (See Order

Setting Sched. Conf.) Based on these facts, the court issued its Order to Show Cause, directing

Plaintiff to show cause in writing by March 12, 2012, why her “Title VII Complaint” should not

be dismissed for failure to prosecute her case and failure to comply with court orders. The court

warned Plaintiff that failure to respond to the Order to Show Cause or failure to show cause

would result in a recommendation that this case be dismissed, with prejudice, in its entirety

pursuant to Fed. R. Civ. P. 16(f)(1)(C), 37(b)(2) and 41, D.C.COLO.LCivR 41.1, and Ehrenhaus

v. Reynolds, 965 F.2d 916 (10th Cir. 1992). 

On March 15, 2012, the court granted Plaintiff an extension of time through April 14,

2012 to respond to the Order to Show Cause. (Minute Order, Doc. No. 30.) On April 16, 2012,

two days after that extended deadline, Plaintiff filed her original Response to Order to Show

Cause. (Doc. No. 16 [Resp.]) Therein, Plaintiff asserts that she conferred with Defendant in

December and late-February. (Id. at 1.) Plaintiff also maintains that Defendants “were instantly

stubborn and unethical” and “broke off communication.” (Id.) Plaintiff also asserts that she

“misremembered the day of the scheduling conference and believed it to be March 12th or 13th,

probably because her and some relatives birthdays are at that time.” (Id. at 2.) 

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On June 13, 2012, Defendant filed its “Response to Plaintiff’s Response to Order to

Show Cause.” (Doc. No. 63 [hereinafter “Reply”.) Therein, Defendant notes that Plaintiff’s

Response does not deny that Plaintiff failed to participate in the Rule 26(f) planning meeting or

preparing the proposed scheduling order. (Id. at 1-2.) Defendant also notes that Plaintiff does

not deny that she received numerous letters, emails, and phone calls from Defendant’s counsel

regarding the parties duty to conduct the Rule 26(f) planning meeting and prepare the proposed

scheduling order. (Id. at 2.) Defendant’s counsel acknowledges that he did confer with Plaintiff

in mid-December 2011, but that conversation only related to Plaintiff’s request to postpone the

scheduling conference by three months, to which Defendant’s counsel also objected. (Id. at 3.) 

Similarly, Defendant’s counsel acknowledges that he spoke with Plaintiff on February 27,

2012—just before the Order to Show Cause was entered—regarding Plaintiff’s proposal to stay

this action for one year, to which Defendant’s counsel objected. (Id. at 4.) Finally, Defendant’s

counsel vehemently denies Plaintiff’s position that he was stubborn and unethical, and maintains

that Plaintiff’s position that he “broke off communications” is belied by the record. (Id. at 4-5.) 

On July 12, 2012, the court granted Plaintiff an extension of time through July 19, 2012

to respond to Defendant’s Reply. However, rather than filing what would have effectively been

a surreply to Defendant’s Reply, on July 20, 2012, one day after the court-imposed deadline,

Plaintiff filed an “Unopposed Ammended [sic] Response to the Order to Show Cause.” (Doc.

No. 81 [Am. Resp.].) Plaintiff’s Amended Response is largely consumed with maligning the

court, the legal system, and opposing counsel. (See id.) Plaintiff also maintains that she

contacted Defendant before the Scheduling Conference and that she has been suffering from

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several medical issues. (Id. at 8-10.) Finally, Plaintiff appears to argue that dismissing this case

would be inappropriate because she did not act willfully or in bad faith, because Defendant has

not been prejudiced, because she did not have any notice of a potential sanction, and because less

drastic sanctions have not been imposed or ordered. (Id. at 11-15.) 

Defendant’s Motion for Leave to File a Surreply was filed on July 25, 2012. (See Mot.

Leave File Surreply.) Defendant seeks leave to file an attached surreply because Plaintiff’s

Amended Response raises new issues that were not incorporated into her original Response. 

(See id.)

ANALYSIS

A. Motion for Leave to File Surreply

At the outset, the court considers Defendant’s Motion for Leave to File a Surreply. 

Defendant is correct that Plaintiff’s Amended Response raises new issues that were not

incorporated into her original Response; however, the court finds that the existing briefing,

which now includes a response, reply, and an amended response, is more than sufficient to

apprise the court of the narrow issues at hand. Therefore, because a surreply would not be

helpful to the court’s determination, the court finds that Defendant’s Motion is properly denied. 

B. Order to Show Cause 

The court finds that Plaintiff has failed to show cause for her failure to comply with this

court’s Order Setting Scheduling Conference and to prosecute this case. Despite multiple

opportunities to do so, Plaintiff has failed to explain why she was unable to respond to

Defendant’s repeated attempts to contact her regarding the Rule 26(f) planning meeting and

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proposed scheduling order. Although Plaintiff maintains that she did contact Defendant’s

counsel in mid-December, Plaintiff does not dispute that the substance of this conversation

related solely to Plaintiff’s request to postpone the Scheduling Conference by three months. 

Defendant’s counsel objected to that request and, notably, Plaintiff never filed an motion to reset

the Scheduling Conference. Similarly, although Plaintiff again spoke to Defendant’s counsel in

late-February 2012 about staying this action for one year, Plaintiff does not dispute that this

conversation occurred well after the parties were required to conduct the Rule 26(f) planning

meeting and submit a proposed scheduling order. 

Plaintiff’s unsupported assertion that Defendant’s counsel “broke off communication” is

wholly refuted by the record, which demonstrates that Defendant’s counsel made numerous

attempts to contact Plaintiff via mail, email, and telephone about the parties duty to conduct a

Rule 26(f) planning meeting and to prepare a proposed scheduling order. (See Proposed

Scheduling Order.) For similar reasons, the court also rejects Plaintiff’s conclusory assertion

that Defendant’s counsel was “stubborn and unethical.” (Resp. at 1.)

Additionally, the fact that Plaintiff may have “misremembered” the date of the

Scheduling Conference fails to show cause for her failure to comply with the court’s Order

Setting Scheduling Conference. (Id. at 2.) Again, the record amply demonstrates that

Defendant’s counsel made repeated attempts to contact her regarding both the Rule 26(f)

planning meeting and the Scheduling Conference. Had Plaintiff responded to even one of these

emails, phone calls, and letters, her erroneous assumption about the date of the Scheduling

Conference could have been easily corrected.

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Finally, the court finds that Plaintiff’s vague references to various medical issues does

not show cause for her failure to participate in the Rule 26(f) planning meeting or in preparing

the proposed scheduling order. Plaintiff does not provide any specific dates that she suffered

from these purportedly disabling conditions, nor does she explain why they prevented her from

responding to Defendant’s counsel’s numerous attempts to contact her. Additionally, it is

notable that Plaintiff did not raise these medical issues with Defendant’s counsel when they

spoke in mid-December and late-February; nor were they raised in her original Response to the

Order to Show Cause. Rather, they only came to light when she filed her Amended Response

nearly five months after the Order to Show Cause was entered. 

Having concluded that Plaintiff has not shown cause for her failure to prosecute this case

and failure to comply with court orders, the court turns to the appropriate sanction. The Federal

Rules of Civil Procedure give a district court ample tools to deal with recalcitrant litigants. See

Jones v. Thompson, 99 F.2d 261, 264 (10th Cir. 1993). Fed. R. Civ. P. 16(f)(1)(C) and 37(b)(2)

and D.C.COLO.LCivR 41.1 enable the court to impose sanctions, including dismissal, when a

party fails to obey pretrial orders. Fed. R. Civ. P. 41 and D.C.COLO.LCivR 41.1 also enable the

court to dismiss a case when a party fails to prosecute a case. The Tenth Circuit has likewise

recognized that “[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.” Reed

v. Bennett, 312 F.3d 1190, 1195 (10th Cir.2002). 

However, a dismissal with prejudice is a more severe sanction, and generally requires the

district court to consider certain criteria. AdvantEdge Bus. Group v. Thomas E. Mestmaker &

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Assoc., Inc., 552 F.3d 1233, 1235 (10th Cir. 2009). In Ehrenhaus v. Reynolds, 965 F.2d 916

(10th Cir. 1992), the Tenth Circuit set forth a non-exhaustive list of factors to be considered

when evaluating grounds for dismissal of an action with prejudice. 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). “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.” Id. “[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).

Having, considered the Ehrenhaus factors, the court finds that dismissal with prejudice is

appropriate. Although Plaintiff insists that Defendant has not been prejudiced (Am. Resp. at 14),

the court disagrees. Specifically, Plaintiff’s conduct has prejudiced Defendant insofar as

Defendant’s counsel spent considerable time in his repeated, unsuccessful attempts to contact

Plaintiff to conduct the Rule 26(f) planning meeting and to prepare the proposed scheduling

order. Defendant also was forced to unilaterally prepare and file the proposed scheduling order,

only to have the court vacate the Scheduling Conference due to Plaintiff’s failure to provide any

input into the proposed scheduling order. (See Order to Show Cause at 4.) 

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Second, the court finds that Plaintiff has significantly interfered with the judicial process

not only in this matter, but also a previously-filed case against the same defendant. More

specifically, Plaintiff filed a prior Title VII Complaint against Black and McDonald/Custom

Lighting Services on July 14, 2011. (See Doc. No. 1, Case No. 11-cv-01838-LTB.) On July 29,

2011, Magistrate Judge Boyd N. Boland entered an order directing Plaintiff to cure several

enumerated deficiencies in her Title VII Complaint within thirty days. (Doc. No. 3, Case No.

11-cv-01838-LTB.) Similar to Plaintiff’s conduct in this case, Plaintiff failed to comply with

Magistrate Judge Boland’s order, and, as a consequence, that case was dismissed without

prejudice pursuant to Fed. R. Civ. P. 41(b). (See Doc. No. 8, filed Sept. 13, 2011, Case. No. 11-

cv-01838-LTB.) As such, Plaintiff has now wasted scarce judicial resources, in not one, but two

cases and, as a consequence, has exhibited a substantial disregard for the judicial process.

Third, the court finds Plaintiff is culpable for the delays in this case and for the violations

of this court’s orders. Although Plaintiff maintains that she mistakenly followed a secondary

source entitled “Litigating Sexual Harassment & Sex Discrimination Cases” regarding the timing

of the Rule 26(f) planning meeting (Am. Resp. at 11, Ex. 4), this does not explain Plaintiff’s

utter failure to respond to Defendant’s counsel’s repeated attempts to contact her, nor does it

explain her admitted failure to consult the court’s Order Setting the Scheduling Conference (see

id. at 11). 

More importantly, the court notes that Plaintiff filed several other cases the same day as

this action was filed and in each and every one of those cases the court has been forced to enter

orders to show cause based on Plaintiff’s failure to communicate with defense counsel and

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 Indeed, in both cases the court entered a Recommendation that Plaintiff’s Complaint be

dismissed with prejudice (see Doc. No. 22, filed Apr. 18, 2012, Case No. 11-cv-2695-REBKMT; Doc. No. 72, filed June 6, 2012, Case No. 11-cv-2697-REB-KMT), and in Case Number

11-cv-2695-REB-KMT, District Judge Robert E. Blackburn adopted this court’s

Recommendation and dismissed that case with prejudice. (See Doc. No. 22, filed Apr. 18, 2012,

Case No. 11-cv-2695-REB-KMT.) The Recommendation in Case Number 11-cv-2697-REBKMT has not yet been ruled on. 

11

failure to comply with court-ordered obligations. (See Doc. No. 21, Case No. 11-cv-2695-REBKMT; Doc. No. 20, Case No. 11-cv-2697-REB-KMT.)3

 Indeed, as in this case, the scheduling

conference set in those cases were vacated due to Plaintiff’s complete failure to communicate

with defense counsel and provide her input for the proposed scheduling orders. (See id.) 

Plaintiff’s culpability is further corroborated by Plaintiff’s failure to comply with

Magistrate Judge Boland’s Order Directing Plaintiff to Cure Deficiencies entered in Case

Number 11-cv-1838-LTB. (Doc. No. 3, Case No. 11-cv-01838-LTB.) Altogether, Plaintiff’s

conduct in this case is far from an isolated incident that can be gratuitously overlooked. Instead,

Plaintiff has demonstrated an unacceptable pattern of scorning court orders, thereby undermining

the judicial process and wasting court and party resources along the way.

Fourth, the court specifically warned Plaintiff that her failure to comply with this court’s

orders or show cause would result in a recommendation that this case be dismissed with

prejudice. (See Order to Show Cause at 5.)

As to the final Ehrehaus factor, the court finds Plaintiff’s failure to obey the orders of

this court, in this and other cases, to be unacceptable and that such litigation behavior should not

be tolerated. Between October 17, 2011, when Plaintiff filed her Title VII Complaint, and the

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entry of the Order to Show Cause, Plaintiff made very little effort to prosecute this action, which

has substantially delayed the progress of this case. Furthermore, the fact that Plaintiff filed this

second action against Black and McDonald/Custom Lighting Services after Case Number 11-cv1838-LTB was dismissed without prejudice demonstrates that doing the same here (i.e.

dismissing this action without prejudice) would be insufficient to deter Plaintiff from engaging

in such behavior in the future. Indeed, Plaintiff’s conduct in Case Number 11-cv-1748-LTB,

Case Number 11-cv-2697-REB-KMT, and this case clearly indicates that Plaintiff intends to

proceed with her cases at her own pace, regardless of any court orders or sanctions to the

contrary. Finally, because Plaintiff is proceeding in forma pauperis, a monetary sanction would

be ineffective.

Accordingly, recognizing that dismissal with prejudice is a severe sanction, the court

nonetheless believes that no other sanction will be effective to deter this pattern of impermissible

conduct. See Hobratschk v. Perretta, 210 F.3d 389, No. 99-1293, 2000 WL 313530, at *2 (10th

Cir. Mar. 28, 2000) (stating that a district court need not impose lesser sanctions before dismissal

with prejudice); see also Jones, 996 F.2d at 265–66 (quoting Nat’l Hockey League v. Metro.

Hockey Club, Inc., 427 U.S. 639, 643 (1976)) (dismissal with prejudice serves the purposes of

“penaliz[ing] the party whose conduct warrants the sanction and discourag[ing] ‘those who

might be tempted to such conduct in the absence of such a deterrent.’”). Altogether, the court 

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concludes that the five Ehrenhaus factors have been satisfied in this matter and that dismissal

with prejudice is appropriate.

WHEREFORE, for the foregoing reasons, the court respectfully 

RECOMMENDS that the Defendant’s Motion for Leave to File Surreply to Plaintiff’s

Unopposed Amended Response to the Order to Show Cause (Doc. No. 82) be DENIED. 

The court further 

RECOMMENDS that Plaintiff’s Title VII Complaint (Doc. No. 1) and this action be

dismissed in their entirety, with prejudice, pursuant to Fed. R. Civ. P. 41, D.C.COLO.LCivR

41.1, and Ehrenhaus v. Reynolds, 965 F.2d (10th Cir. 1992).

The court further

RECOMMENDS that the District Court certify, pursuant to Title 28 U.S.C. § 1915(a)(3),

that any appeal from this recommendation and order would not be taken in good faith and

therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v.

United States, 369 U.S. 438 (1962). Thereafter, if Plaintiff files a notice of appeal she also must

pay the full $455.00 appellate filing fee or file a motion to proceed in forma pauperis in the

United States Court of Appeals for the Tenth Circuit within thirty days of the court’s final order

in accordance with Fed. R. App. P. 24.

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings and

recommendations with the Clerk of the United States District Court for the District of Colorado. 

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28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A

general objection that does not put the district court on notice of the basis for the objection will

not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s

report and 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.

Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to

make timely objections may bar de novo review by the district judge of the magistrate judge’s

proposed findings and recommendations and will result in a waiver of the right to appeal from a

judgment of the district court based on the proposed findings and recommendations of the

magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s

decision to review a magistrate judge’s recommendation de novo despite the lack of an objection

does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at

1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both

timely and specific to preserve an issue for de novo review by the district court or for appellate

review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.

1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had

waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 

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1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal

the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th

Cir. 2005) (firm waiver rule does not apply when the interests of justice require review). 

Dated this 2nd day of August, 2012.

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