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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02694-KLM

CRYSTAL KOOY,

Plaintiff,

v.

DEBRA RILEY, Nurse Practitioner,

JUDY SIAZ, Nurse Practitioner, and

PAULA FRANZ,

Defendants.

_____________________________________________________________________

ORDER

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on the Order to Show Cause [Docket No. 36]. The

Court ordered Plaintiff to show cause “as to why this case should not be dismissed for her

failure to comply with the Local Rules and to prosecute this lawsuit.” Order to Show Cause

[#36] at 2. Plaintiff’s deadline for compliance with the Order to Show Cause was July 23,

2012. To date, Plaintiff has neither filed a response nor contacted the Court in any manner.

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, on January 27, 2012, Defendants filed a

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Motion to Dismiss [#24]. On February 27, 2012, Plaintiff filed a request for an extension

of time to respond to the Motion to Dismiss. [#28]. The Court denied, without prejudice,

Plaintiff’s request for failure to inform the Court of how much additional time she was

requesting. [#33]. On February 29, 2012, Plaintiff filed a Consent to the Exercise of

Jurisdiction by a United States Magistrate Judge [#30]. She has not contacted the Court

formally or informally since that date. On May 29, 2012, the Court issued a Minute Order

providing Plaintiff with one last chance to respond to the pending Motion to Dismiss [#24].

On June 19, 2012, the Minute Order was returned to the Office of the Clerk with a stamp

indicating that Plaintiff was no longer at the address on file with the Court. [#35].

In addition, on July 19, 2012, the Order to Show Cause sent to Plaintiff by the Clerk

of the Court was also returned as undeliverable [#37]. D.C.COLO.LCivR 10.1M requires

that notice of any change of address (or other contact information) be provided to the Court

within five days of such change. Plaintiff is thus under a continuing obligation to inform the

Court of any changes in her contact information. To date, the docket does not reflect the

filing of a notice by Plaintiff regarding an address change. Because Plaintiff has failed to

update her present contact information with the Court, the Court and Defendants have no

means of contacting her in connection with this litigation. Further, Plaintiff has indicated

that she no longer chooses to prosecute this lawsuit based on her failure to respond to the

Motion to Dismiss and her failure to contact the Court in any way in nearly five months. 

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

comply with the instruction to respond would result in dismissal due to Plaintiff’s failure to

comply with the Local Rules and to prosecute this lawsuit. [#36] at 2. Given Plaintiff’s

failure to comply with the instruction stated in the Order to Show Cause, the Court

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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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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).

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. Plaintiff has failed to update her present contact information with the Court and,

thus, the Court and Defendants have no means of contacting her in connection with this

litigation. Further, Plaintiff has disobeyed a direct order of the Court by failing to file a

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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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response to the Order to Show Cause regarding her intent to prosecute this case. These

facts demonstrate that Plaintiff has abandoned her lawsuit, and consideration of the abovestated Ehrenhaus factors weigh in favor of dismissal without prejudice.2

 Accordingly,

IT IS HEREBY ORDERED that the Order to Show Cause is MADE ABSOLUTE.

Thus,

IT IS FURTHER ORDERED that Plaintiff’s Complaint [#1] is DISMISSED WITHOUT

PREJUDICE and that the Clerk of the Court shall close the case.

Dated: July 30, 2012

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