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O-J-R v. Ashcroft

July 1, 2003

O-J-R, PLAINTIFF,
v.
JOHN ASHCROFT ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina, United States District Court.

Document Nos. 12, 13

MEMORANDUM ORDER

DENYING THE PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT; ORDERING THE PLAINTIFF TO ASSERT HER INTENT TO PROSECUTE THIS ACTION WITH A DIFFERENT ATTORNEY

The plaintiff, a citizen of Nigeria, filed this action to challenge the Immigration and Naturalization Service's denial of her application for authorization to work in the United States. This matter comes before the court on the court's order to show cause why the court should not dismiss the action for failure to prosecute, the plaintiff's response to that order, and the plaintiff's motion for entry of default judgment. Because of the plaintiff's repeated failure to prosecute her case and failure to comply with the court's orders, the federal rules, and the local rules; the court reluctantly permits the plaintiff to proceed by asserting her intent to prosecute this action with a different attorney and denies the motion for default judgment without prejudice.

I. BACKGROUND

On May 2, 2001, the plaintiff filed the complaint in this matter. On April 25, 2002, because the plaintiff had failed to properly serve the defendants, the court ordered the plaintiff to show cause why the case should not be dismissed for failure to prosecute. Order dated Apr. 25, 2002. The order specifically mentioned the plaintiff's failure to serve the defendants. Id. In response, the plaintiff moved for an extension of time to serve the defendants with an amended complaint. The court granted this motion and the plaintiff served the defendants on June 24 and 26, 2002. Order dated May 30, 2002. In its May 2002 order, the court also denied without prejudice the plaintiff's motion to proceed using a pseudonym because the motion failed to demonstrate good cause for the relief requested and failed to provide points and authorities as required by Local Civil Rule 7.1(a). Id. Finally, the court also warned the plaintiff that " parties practicing before this court MUST strictly follow the Local Civil Rules, the Federal Rules of Civil Procedure, and this court's Civil Standing Order." Id. (emphasis in original).

The record reflects that the defendants have not filed an answer or otherwise responded to the plaintiff's complaint. Despite the defendants' omissions, the plaintiff failed to move her case forward. Consequently, the court again directed the plaintiff to show cause why the court should not dismiss this action for failure to prosecute. Order dated Oct. 3, 2002. In this order, the court mentioned specifically the plaintiff's failure to file for default. Id. On October 10, 2002, the plaintiff filed a response to the second show-cause order and a motion for default judgment.

II. ANALYSIS

A court has the discretion to dismiss a complaint with prejudice when a plaintiff fails to prosecute the complaint, fails to follow the federal rules, or fails to follow court orders. Fed. R. Civ. P. 41(b); LCvR 83.23. While dismissal with prejudice may be an unduly severe sanction for a single instance of attorney misconduct, it may be appropriate "after unfruitful resort to lesser sanctions." Gardner v. United States, 211 F.3d 1305, 1308-09 (D.C. Cir. 2000); see also Barber v. Am. Sec. Bank, 841 F.2d 1159, 1162 (D.C. Cir. 1988) (dismissing appeal due to counsel's "inexcusable disregard for the rules of [the] court" and inadequate explanation for late filings). In the context of Rule 41(b), the D.C. Circuit has enumerated three justifications for dismissal with prejudice because of attorney misconduct: (1) severe prejudice to another party; (2) failure of alternative sanctions to mitigate the severe burden that the misconduct has already placed on the judicial system; and (3) the need to sanction conduct that demonstrates a blatant disregard for the court's orders in order to deter future misconduct. Gardner, 211 F.3d at 1309; Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1074-1079 (D.C. Cir. 1986).

The third rationale, deterrence, justifies dismissals when there is some indication that the attorney has deliberately failed to comply with a court order, and the client is aware of the attorney's misconduct. Shea, 795 F.2d at 1077-78. Concerned that a client might be unaware of the attorney's misconduct, this circuit requires a district court to notify the client before dismissing a case pursuant to the deterrence rationale. Id. One alternative sanction is "dismissal of the suit unless new counsel is secured." Id. at 1079 n.6.

Applying the second and third rationales to the facts of the case at bar, the court orders the plaintiff to assert her intent to prosecute her case with a new counsel. If the plaintiff fails to convince the court, the court will dismiss the action.

In the court's show-cause order, the court prompted the plaintiff by suggesting that she was failing to prosecute her case because even though the docket reflects no answer or motion by the defendants, the plaintiff failed to request default. Order dated Oct. 3, 2002. Demonstrating some effort to respond to the court's show-cause order, the plaintiff filed a motion for default judgment. Mot. for Default J. However, the plaintiff's response to the court's October 2002 show-cause order fails to provide any explanation for the plaintiff's continued failure to move her case forward without the prompting of the court. Resp. to Show-Cause Order at 1-2.

In addition, despite the court's previous warnings regarding the court's standing order, the federal rules, and the local rules (specifically Local Civil Rule 7.1(a)), the plaintiff filed yet another deficient motion. Mot. for Default J.; Order dated May 30, 2002. The court denies the motion for the following reasons. First, the plaintiff's memorandum of points and ...


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