Rule 41(b) Sanctions — Dismissal: Factors (10th Cir.) — While Factors Usually Needn’t Be Considered when Dismissal Is without Prejudice, They Must If the Statute of Limitations Has Run & It Effectively Terminates the Case

Villecco v. Grand Teton Lodge Co., 2017 WL 3726983 (10th Cir. Aug. 30, 2017):

Michael Villecco, appearing pro se,1 appeals the district court’s dismissal of his employment discrimination claim for failure to prosecute his claim, and from the subsequent denial of his motion for relief under Fed. R. Civ. P. 60(b). We affirm.

I. Background

Villecco was terminated from his job as a seasonal dock attendant at Grand Teton National Park after working there for one month. He filed a complaint against Vail Resorts, Inc. and its wholly-owned subsidiary, Grand Teton Lodge Company, (the Defendants) alleging age discrimination and retaliation under Title VII and the Age Discrimination in Employment Act, and intentional infliction of emotional distress. His complaint and court filings gave his address as “General Delivery” in Durango, Colorado. R. at 7, 25, 27. Later, he mailed his first set of discovery requests from “The Mail Room and Copy Center” at “10 Town Plaza” in Durango. Id. at 19. He never provided any residential or email address, or any phone number. 

The Defendants, through counsel, sent Villecco numerous discovery requests, notices of deposition, and other communications at these addresses, but Villecco almost never responded. He submitted initial disclosures under Fed. R. Civ. P. 26(a), but never produced any of the documents identified in that disclosure, despite follow-up letters from Defendants’ counsel asking him to do so. He produced only one document in response to the Defendants’ request for documents pursuant to Fed. R. Civ. P. 34

Villecco failed to appear at his scheduled deposition. Defendants’ counsel sent Villecco a Notice of Deposition on August 31, 2016, directing him to appear for his deposition in Durango on October 4, 2016. They wrote asking him to notify them if he could not attend that day. Villecco did not respond, so Defendants’ counsel wrote again, asking him to let them know if he could attend the October 4 deposition. Still receiving no response, Defendants’ counsel sent him a second Notice of Deposition on September 28, 2016, at both the General Delivery and 10 Town Plaza addresses, rescheduling his deposition in Durango to October 17, 2016. Counsel’s letter asked Villecco to confirm receipt of the Notice, but he did not respond. On October 11, 2016, Defendants’ counsel sent Villecco a letter informing him the October 17 deposition would proceed as noticed, despite his failure to respond. Villecco did not respond. Counsel for Defendants traveled to Durango from Salt Lake City, Utah, and Denver for the October 17 deposition, but Villecco never appeared. 

Defendants filed a Motion to Dismiss and for Sanctions under Rule 41(b), and for sanctions under Fed. R. Civ. P. 37(d). The Motion was mailed to both Villecco’s General Delivery and 10 Town Plaza addresses. The Defendants produced evidence showing that Villecco failed to comply with his discovery obligations under Rule 26(a); failed to respond to document requests under Rule 34; failed to appear at his properly-noticed deposition; and failed to respond to any communications from Defendants’ counsel. Villecco did not respond to the Motion to Dismiss. 

The district court dismissed Villecco’s complaint without prejudice. It considered whether dismissal was an appropriate sanction, applying the factors we have delineated in Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992). It determined that Villecco caused great interference with the judicial process by failing to provide the court with a current mailing address or an address that he regularly checked; respond to discovery requests; appear at his deposition; list any fact witnesses or otherwise comply with the court’s Initial Pretrial Order, or respond to the Defendants’ Motion to Dismiss. The district court concluded that Villecco acted with culpability because he was well aware of his discovery obligations, as he sent the Defendants five sets of discovery requests, including seventy-six requests for production of documents and thirty-seven interrogatories. Given Villecco’s failure to communicate, to respond to any notices or the Motion to Dismiss, or to comply with any deadlines, the court found no lesser sanction than dismissal would be effective. 

The district court denied the Defendants’ request for attorney fees as a sanction under Rule 37(d), noting that while Villecco’s conduct justified such an award, Villecco appeared to have no known employment or settled residence and had already been sanctioned by the dismissal of his complaint. 

Villecco filed a motion for relief under Rule 60(b), arguing the Motion to Dismiss was not served on him and that the judgment of dismissal was void for lack of due process. The district court denied the motion. Villecco appeals.

II. Analysis

Federal Rule of Civil Procedure 41(b) authorizes the involuntary dismissal of an action “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order.” We review an order of dismissal for failure to prosecute under an abuse-of-discretion standard. Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007). A district court abuses its discretion if it “makes a clear error of judgment or exceeds the bounds of permissible choice in the circumstances.” Id. (alterations and internal quotation marks omitted). “A district court undoubtedly has discretion to sanction a party for failing to prosecute ... a case, or for failing to comply with local or federal procedural rules.”

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