Failure to Find Replacement Counsel Results in Dismissal for Failure to Prosecute

Rocky Mountain Technology Engineering Company, LLC, v. Hutchens Industries, Inc, [2007-1473](February 8, 2008) [DYK, Gajarsa, Linn] NON-PRECEDENTIAL The Federal Circuit affirmed the dismissal of the action for plaintiff's failure to prosecute.
BRIEF: Applying the law of the local circuit because the issue of dismissal was not peculiar to patent law, the Federal Circuit noted that before dismissing an action with prejudice under Rule 41(b), in the Tenth Circuit a district court "ordinarily should consider" a nonexhaustive list of five factors: "(1) the degree of actual prejudice to the other party; (2) the amount of interference with the judicial process; (3) the litigant’s culpability; (4) whether the court warned the party in advance that dismissal would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions." The Federal Circuit found no error in the district court's actions. Because the district court explicitly considered most of the relevant factors and the record as to each of the five factors supports dismissal, the Federal Circuit concluded that the court did not abuse its discretion in dismissing the case with prejudice.