KATHLEEN M. TAFOYA, Magistrate Judge.
This case comes before the court on "Defendant Centura's Motion to Dismiss" [Doc. No. 44] filed February 4, 2019. "Plaintiff's Objection to Centura's Motion to Dismiss" [Doc. No. 54]("Resp.") was filed on February 27, 2019, although Plaintiff claims he "is under no legal obligation to submit a response to a void order issued by Judge Kathleen Tafoya, Judge Phillip Brimmer, or answer Defendant's Counsel's Mel Sabey's pointless motion . . . ." Defendant filed a Reply [Doc. No. 55] on March 11, 2019.
Plaintiff filed his Title VII Complaint on April 6, 2018. [Doc. No. 1.] Now a year later and no closer to actually discovering anything about the pending allegations, the plaintiff cannot be persuaded to participate in discovery, even in the most fundamental ways, and is disclaiming jurisdiction of the Court he himself chose when filing his case. While this court has been, and remains, sympathetic to Plaintiff's apparently uncontrollable, self-destructive fixation on side issues, the time has come to call it quits.
Plaintiff, in his twenty-five page Complaint, alleges Disparate Treatment pursuant to 42 U.S.C. § 2000e-2 (Claim I); Tampering with Evidence in violation of criminal statute 18 U.S.C. §1512 (Claim II); and Retaliation pursuant to 42 U.S.C. § 2000e (Claim III). Defendant answered the Complaint on May 14, 2018. [Doc. No. 5.] Thereafter, Plaintiff, in the first of many frivolous side-show diversions, mounted a campaign to have default and default judgment entered against Defendant, in spite of the fact an Answer had been timely filed. [Doc. Nos. 7-12.] Plaintiff claimed he was not properly served with the Answer, thus entitling him to default. While briefing was underway on these issues, a Scheduling Conference was set for July 9, 2018. Plaintiff, however, refused to participate in drafting a Scheduling Order so the matter had to be re-set. [Doc. No. 19.] Even though the court ruled against him concerning default and urged him to move forward with discovery about the merits of the case, Plaintiff continued to persist in his request to have default judgment entered. [Doc. No. 20.] At the rescheduled conference on July 24, 2018, the court spent considerable in-person time with Plaintiff listening to his concerns and attempting to get him on track to prosecute his case.
Once Plaintiff left the courtroom, instead of proceeding with discovery, he continued to bog himself down with side issues, refusing to confer with opposing counsel and making unreasonable demands regarding an email he was convinced (without any empirical evidence) had been subjected to tampering.
In less than a week, Plaintiff filed more motions about the same email which had, by this time, been produced to Plaintiff by Defendant in several different ways attempting to satisfy Plaintiff's demands. This time Plaintiff sought sanctions against the defendant. [Doc. No 34, 36-7.] Unfortunately, neither the court nor Defendant's counsel, up to this day, has ever understood what exactly Plaintiff wanted with respect to production of the one email.
On December 18, the court set another hearing both on the issues raised by Plaintiff and on the issue of Plaintiff's refusal to sit for a deposition. [Doc. No. 39.] At the hearing on January 4, 2019, the court spent two hours and twenty-three minutes listening to Plaintiff and trying to get him focused on the issues relevant to the case. [Doc. No. 41.] At the conclusion of this marathon hearing, the court ordered the Plaintiff to stay in the courtroom with defense counsel and provide dates and times when he was available during January 2019 to have his deposition taken. The court ordered the parties not to leave until they had agreed on a date, time and location for Plaintiff's deposition. Id. The court minutes reflect
Id.
Further, the court ordered the Plaintiff to produce discoverable material, including an audiotape, to Defendant and advised him "[f]ailure to produce documents as directed may result in a recommendation from this court that case be dismissed." Id. at 2.
The court had only been off the bench for ten minutes when Defendant's counsel was forced to contact chambers because Plaintiff, in direct contravention of the orders just entered during the hearing, had advised him that Plaintiff would not produce certain material, including an audiotape, in his possession because it was "work product." The court reconvened the already stultifying hearing to explain the parameters of work product to Plaintiff and order him once again to produce the discovery. Id.
As could only be expected given the course of the litigation thus far, instead of taking the directions and orders of the court and moving forward with discovery, Plaintiff instead filed objections to this court's rulings, including a demand for this court's recusal [Doc. No. 42]. His request was denied by Chief District Judge Brimmer a few days later. [Doc. No. 43.]
On February 4, 2019, the instant motion was filed by Defendant, stating that
(Mot. at 2.) Counsel for Defendant, together with the court reporter and videographer hired and paid for by Defendant, waited for Defendant in the pre-arranged location at the date and time agreed to by Plaintiff for his scheduled deposition; Plaintiff did not appear. (Id. at 3.)
Instead of responding and addressing the discovery issues in the case, Plaintiff has now begun pursing a scorched earth attack on the judges of the court, insisting that neither this court nor Chief Judge Brimmer have jurisdiction over him, that the judges are colluding against him, and that all Orders in the case are now "null and void." [Doc. Nos. 48, 50, 54.]
Fed. R. Civ. P. 37(b)(2) provides
Id.
Fed. R. Civ. P. 37(d)(1)(A)(1) provides
Id.
Finally, Fed. R. Civ. P. 37(d)(3) provides
Id.
Determination of the correct sanction for a discovery violation is a fact-specific inquiry. Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir.1992). Factual findings supported by the record are sufficient to support sanctions. See Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976). In Ehrenhaus, the Tenth Circuit affirmed a district court's imposition of an order dismissing the plaintiff's complaint with prejudice as a sanction under Rule 37. Ehrenhaus, 965 F.2d at 920-21. The court reaffirmed its prior holding in Meade v. Grubbs, 841 F.2d 1512. 1520 n.6 (10th Cir.1988), that "[b]ecause dismissal with prejudice `defeats altogether a litigant's right to access to the courts' it should be used as a `weapon of last, rather than first, resort.'" See also United States v. $72,100.00 in U.S. Currency, No. 08-4085, 2009 WL 247837, at *3 (10th Cir. 2009).
A trial court considering Rule 37 sanctions should ordinarily consider various criteria on the record prior to resorting to dismissal of a complaint. Ehrenhaus, 965 F.2d at 921. These criteria include: "(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. (internal citations omitted).
Neither the patient and reasonable counsel for Defendant nor the Magistrate Judge nor the District Court Judge have been able to guide and persuade the Plaintiff to prosecute his claims through the normal discovery mechanisms. Defendant has been compelled to respond over and over again to outrageous accusations and to attend lengthy hearings while the court has repeatedly tried to counsel and help the Plaintiff. Defendant has, presumably, been required to pay attorney's fees for all this wasted time and effort. The judicial process has come to a complete halt in this case, solely and totally because the Plaintiff has side-tracked himself with ranting vitriol directed at inconsequential or minor issues in the case rather than taking steps to discover evidence and prepare his case for trial. The court has repeatedly warned the Plaintiff that his case could be dismissed if he would not proceed in accordance with the Federal and Local Rules. Plaintiff continues to disregard the rules of discovery, not because he does not understand the process but because he willfully and purposefully refuses to comply with the process. Finally, Plaintiff has repeatedly stated in his Response and in his various recusal motions, "Plaintiff did not agree to have his deposition taken (as stated many times before.)" (Resp. ¶¶ 9, 4, 11, 13.) Plaintiff has stated outright that he has no intention of sitting for his deposition and will continue to defy all orders requiring that he do so. (Id.)
Plaintiff has accused this court, inter alia, of treason and obstruction and has charged that the court "lacks jurisdiction under governing law." (Id. at ¶¶ 3, 16.) Plaintiff states, "Judge Tafoya/Judge Brimmer are not the court and do not have jurisdiction . . . ." (Id. at ¶ 2.) Plaintiff has made it clear that he will not comply with orders of the court and calls the court's orders "null and void." Although the court counseled the Plaintiff repeatedly about his obligations as a litigant, Plaintiff simply refuses to comply with discovery. The defendant has no information from Plaintiff, other than from his prolix and disjointed Complaint, about the evidence which may support the factual allegations in the Complaint and no way of mounting an effective defense. There is just simply no sanction other than dismissal with prejudice to address the Plaintiff's behavior and stop the abuse by Plaintiff of the Defendant and of the court.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that "Defendant Centura's Motion to Dismiss" [Doc. No. 44] be GRANTED and that the Complaint [Doc. No. 1] be dismissed with prejudice. Further, this court
RECOMMENDS that Defendant be awarded its costs, including attorney's fees, of going forward with the case in its entirety beginning after the filing of the Answer and through the date of dismissal.
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. 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, 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).
