*1 This matter comes before the Court on Defendant's Motion for Sanctions Against Plaintiff J.C.C., By and Through Vanessa Vargas, Pursuant to Fed. R. Civ. P. 37 (the “Motion”) [#33] and Plaintiff J.C.C.’s Response in Opposition to Defendant’ [sic] Motion for Sanctions Against Plaintiff J.C.C.., By and Through Vanessa Vargas, Pursuant to Fed. R. Civ. P. 37 (the “Response”) [#35].

In the Motion, Defendant explains a variety of conduct by Plaintiff J.C.C., his mother Vanessa Vargas, and/or his counsel which leads to Defendant's request for sanctions in the form of dismissal of Plaintiff's sole remaining claim. Briefly, this conduct includes: (1) failing to confer about the Motion; (2) a three-day delay in producing documents identified in Plaintiff's disclosures after an agreed-upon extension of time; (3) a thirty-day delay in responding to written discovery requests; (4) failure to attend an initial Rule 35 examination without excuse; (5) failure to attend Plaintiff's scheduled deposition without excuse (although now Plaintiff asserts that Ms. Vargas, Plaintiff's mother, “reported that she was sick during the first deposition and missed her alarm,” see Response [#35] at 4); (6) failure to attend Plaintiff's rescheduled deposition because Ms. Vargas “did not receive final confirmation notice of the deposition time” and allegedly did not receive an out-of-office email message from her counsel's paralegal indicating that she should contact another staff member or call the office with questions, see id.; (7) failure to file a Response to Defendant's Motion to Dismiss two of Plaintiff's three claims; and (8) failure to respond to Defendant's most recent set of written discovery, which was served on August 9, 2022. Defendant points out that this discovery includes a request for an admission that Plaintiff J.C.C., a minor, “was fully compensated for any and all damages resulting from the subject accident in his settlement with the alleged tortfeasor. This request for admission is essentially dispositive of J.C.C.’s claim for underinsured motorist benefits,” which is the sole remaining claim in the case. Motion [#33] at 3, 5-6.

Plaintiff responds that his counsel's law firm, “while not yet dissolved, has ceased to operate as of June 1, 2022” and the subsequent “transition” of the case to named counsel, Joseph G. Webb, “has caused unavoidable delays.” Response [#35] at 1. Counsel admits to “missteps” but asserts that neither he nor his client committed “intentional acts to hide-the-ball from Defendant.” Plaintiff further asserts, in a conclusory fashion, that any prejudice to Defendant from these “missteps” is “minimal.” Id. at 4. Finally, Plaintiff asserts that J.C.C., a minor, “should not be prejudiced by dismissal of his claims because of the failure of his mother in the discovery process.” Id., at 5.

It is well-settled law that before the Court may impose a severe sanction like dismissal, it must consider several factors, including whether the Court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance and the efficacy of lesser sanctions. Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992) (quoting Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 707 (1982)). The Court has considered each of the applicable factors and finds as follows.

*2 The actions of Plaintiff's counsel and Ms. Vargas demonstrate not only a lackadaisical attitude about the lawsuit, but at the very least negligence as well. The number and significance of the instances of their inappropriate conduct begs for the imposition of serious sanctions. Failure to respond to a motion to dismiss demonstrates, at best, a cavalier attitude of disrespect for the legal process, opposing counsel and the Court. Filing claims which lack an adequate legal or factual basis causes needless wastes of time, money and energy. Failure to participate in discovery as required by the Federal Rules of Civil Procedure demonstrates, at best, the same cavalier attitude and a lack of commitment to the case by both counsel and Ms. Vargas. This conduct is also vexatious and entirely unnecessary. It aggravates opposing counsel and the Court and has real consequences, as explained above.

Nevertheless, due to Plaintiff's status as a minor and his lack of direct responsibility for any of the “missteps,” the Court is not inclined to dismiss the case. Plaintiff has not yet been warned about inappropriate behavior, but this Order fills that gap. Accordingly, IT IS THEREFORE ORDERED as follows:

The Motion [#33] is GRANTED IN PART AND DENIED IN PART, as follows:

Dated: September 22, 2022