IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-02297-WJM-KLM

DARIN D. FORAN, and

JOSEPH G. TAFOYA, JR.,

Plaintiff,

v.

ALDERWOODS GROUP, INC.,

Defendant.

ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO

PROSECUTE AND FAILURE TO OBEY COURT ORDERS

This action was originally commenced in the Northern District of California as a

wage-and-hour collective action. (See ECF No. 1.) On December 29, 2009, the

Northern District of California denied the Motions for Class Certification. (Id. at 2.) The

court then granted the Defendant’s Motion to Sever and ordered that each individual

plaintiff’s claims be transferred to their home district. (Id. at 7.) 

Darin D. Foran and Joseph G. Tafoya (together “Plaintiffs”) were the two

plaintiffs whose claims were transferred to the District of Colorado. The abovecaptioned case was opened on September 1, 2011. On September 7, 2011, the

undersigned ordered Plaintiffs to file a new complaint not later than October 7, 2011. 

(ECF No. 7.) In response, Plaintiffs’ counsel sought a 120 day stay to allow them time

to regroup after the decertification. (ECF No. 8.) The Court granted Plaintiffs’ request

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and stayed the case for 120 days. (ECF No. 15.) The Court ordered Plaintiffs’ counsel

to contact Mr. Foran and Mr. Tafoya to ascertain whether they wished to proceed with

this litigation. (Id.) If they chose to proceed, they were ordered to file an amended

complaint setting forth only Mr. Foran and Mr. Tafoya’s individual claims not later than

January 25, 2012. (Id.) 

Plaintiffs did not comply with the Court’s Order. On January 30, 2012, the Court

issued an Order to Show Cause requiring Plaintiffs’ counsel to show cause as to why

the case should not be dismissed for failure to prosecute and failure to obey a court

order. (ECF No. 23.) The Court specifically warned Plaintiffs that failure to timely show

cause may result in dismissing of this action. (Id.) The Order to Show Cause was

returnable February 6, 2012. (Id.) To date, Plaintiffs have failed to respond to the

Order to Show Cause. They have also failed to file an amended complaint. 

The Court may sua sponte dismiss an action if the plaintiffs fails to prosecute it

with reasonable diligence. Fed. R. Civ. P. 41(b); see also Link v. Wabash R. Co., 370

U.S. 626 (1962). “Such a dismissal is within the trial court’s sound discretion and

should be sustained absent an abuse of that discretion.” S.E.C. v. Power Resources

Corp., 495 F.2d 297, 298 (10th Cir. 1974). Given Plaintiffs’ repeated failure to obey

Court orders, the Court sees no option other than dismissing this case. Reed v.

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

Accordingly, the above-captioned action is DISMISSED WITHOUT PREJUDICE

for failure to prosecute and failure to obey multiple court orders. The Clerk shall enter

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an appropriate judgment in favor of Defendant. 

Dated this 7 day of February, 2012. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

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