Manning v. Governor's Place Condominium Association
1:21-cv-03187
D. Colo.Mar 8, 2022Background
- Sitges Manning (pro se) filed three separate civil actions in the D. Colo. in November 2021 (21-cv-03129, 21-cv-03186, 21-cv-03187).
- The court set telephonic status conferences for February 3, 2022, and a January 20, 2022 deadline to file consent/non-consent forms; the Minute Orders were mailed and not returned as undeliverable.
- Manning did not appear at any status conferences, did not timely file the consent forms, and did not respond to the court’s February 3, 2022 Orders to Show Cause.
- The Order to Show Cause was returned to the court as undeliverable; Manning had previously indicated she is unhoused but did not file a change-of-address notice as required by the Local Rules.
- No named defendants appear to have been served; the Magistrate Judge found Manning’s conduct amounted to failure to prosecute and recommended dismissal without prejudice and reassignment to a District Judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to prosecute is appropriate | No substantive response to the Order to Show Cause; generally did not participate (complaint notes homelessness) | No active defense argument on record; court considered procedural rules and inactivity | Recommended dismissal without prejudice for failure to prosecute and noncompliance with court orders and Local Rules |
| Whether pro se status excuses compliance with rules and orders | Pro se status; indicated she is unhoused | N/A on record | Pro se status does not excuse compliance with Federal Rules or Local Rules; dismissal still permissible |
| Whether failure to update address justifies dismissal | No timely notice of address change; only known address was on complaint | N/A on record | Failure to provide current address violated D.C.COLO.LCivR 5.1(c) and supported dismissal without prejudice |
| Whether failure to serve defendants under Rule 4(m) warranted dismissal | No evidence of service; plaintiff did not move for extension | N/A on record | Court noted service had not occurred but held Rule 4(m) dismissal was not the basis here because the OSC issued before service deadline; dismissal rested on failure to prosecute and rule noncompliance |
Key Cases Cited
- Reed v. Bennett, 312 F.3d 1190 (10th Cir.) (district court has discretion to sanction for failure to prosecute or comply)
- Gripe v. City of Enid, 312 F.3d 1184 (10th Cir.) (failure to comply with court orders supports dismissal)
- Murray v. City of Tahlequah, 312 F.3d 1196 (10th Cir.) (pro se litigants must follow procedural rules)
- Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th Cir.) (court cannot act as advocate for pro se litigant)
- Shotkin v. Westinghouse Elec. & Mfg. Co., 169 F.2d 825 (10th Cir.) (district court has inherent power to dismiss for failure to prosecute)
- United States v. One Parcel of Real Prop. Known As 2121 E. 30th St., 73 F.3d 1057 (10th Cir.) (objections to magistrate judge must be timely and specific to preserve de novo review)
- Vega v. Suthers, 195 F.3d 573 (10th Cir.) (failure to object to magistrate judge's recommendations can waive appellate review)
- Morales-Fernandez v. INS, 418 F.3d 1116 (10th Cir.) (firm waiver rule exceptions where interests of justice require review)