Pitcher v. C&H Distributing

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IN THE UNITED STATES DISTRICT COURT
THE DISTRICT OF UTAH, CENTRAL DIVISION
JASON D. PITCHER,
Plaintiff,
v.
C & H DISTRIBUTING CO.,
Defendant.
REPORT AND RECOMMENDATION
DENYING DEFENDANT’S
[17] MOTION TO DISMISS FOR LACK
OF PROSECUTION AND
ORDER DENYING PLAINTIFF’S [21]
MOTION FOR SCHEDULING ORDER
AND AWARDING ATTORNEY’S FEES
Case No: 2:25-cv-00705-DBB-CMR
District Judge David Barlow
Chief Magistrate Judge Cecilia M. Romero
This matter is referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) (ECF 10,
25). Before the court is Defendant C & H Distributing Co.’s (Defendant or C & H) Motion to
Dismiss for Failure to Prosecute (Motion to Dismiss) (ECF 17), and Plaintiff Jason D. Pitcher’s
(Plaintiff) Response to the Motion to Dismiss (Response) (ECF 19). Also before the court is an
Attorney Planning Meeting Report (APMR) (ECF 20) and Motion for Scheduling Order (Motion
for Scheduling Order) 	(ECF 21), filed by Plaintiff’s counsel David J. Holdsworth (Mr.
Holdsworth), Defendant’s Response (ECF 22), and Mr. Holdsworth’s Errata to the APMR (Errata)
(ECF 23). A hearing was held on July 1, 2026 (Hearing) (ECF 27) on the above motions. For the
reasons set forth below, having carefully considered the parties’ relevant filings and arguments at
the Hearing, the court DENIES the Motion for Scheduling Order (ECF 21), directs the Clerk’s
Office to strike the APMR (ECF 20), and awards attorney’s fees to Defendant. Further, in order to
move the case forward and prevent further delay, the court ORDERS the parties to meet and confer
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and file a stipulated motion for scheduling order, along with an attorney planning meeting report,
and a proposed scheduling order, within seven days of this Order.
In addition, the undersigned RECOMMENDS the court DENY the Motion to Dismiss.
I. 	BACKGROUND
This case concerns Plaintiff’s claims relating to sexual discrimination, sexual harassment,
hostile work environment, and constructive discharge against Defendant (ECF 2). The case has
extended almost a year, Mr. Holdsworth has missed multiple deadlines, and no headway has been
made on discovery. On August 22, 2025, the court issued an Order to Propose Schedule (ECF 3).
Thereafter, “service was one day late, on November 20, 2025, instead of on November 19, 2025”
(ECF 14 at 1). As a result, Defendant filed its first motion to dismiss (ECF 6). Mr. Holdsworth
missed the deadline to respond to the motion to dismiss and instead filed a late motion for extension
of time to obtain service of process (ECF 12). Plaintiff’s counsel Mr. Holdsworth made no showing
of excusable neglect nor any justification other than his own negligence (ECF 12; ECF 14 at 2).
The motion to dismiss was denied, and the motion for extension of time granted, but the court
warned Mr. Holdsworth that further missed deadlines could result in sanctions, including dismissal
of the case (ECF 14 at 1–3).
Sometime after these events, the deadline expired to comply with the court’s Order to
Propose Schedule (ECF 3; ECF 16). On April 6, 2026, the court issued a docket text order directing
the parties to comply with the Order to Propose Schedule (the Order to Comply) (ECF 16). The
same day, Defendant’s counsel contacted Mr. Holdsworth to coordinate compliance with the Order
to Comply (ECF 17 at 9). At no point within the fourteen-day requirement did Mr. Holdsworth
comply with the court’s order or appear to make an effort to do so (id.). Subsequently Defendant
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filed the present Motion to Dismiss (ECF 17). Plaintiff filed a Response, but only after the deadline
to respond had expired (ECF 19).
On the same day Plaintiff’s Response was filed, Plaintiff additionally filed the APMR and
Motion for Scheduling Order (ECF 20; ECF 21). As filed by Mr. Holdsworth, the APMR contained
Defendant’s counsel’s signature, and was styled as a stipulated proposed schedule (ECF 20 at 1,
7). Defendant’s Response to the Motion for Scheduling Order, Mr. Holdsworth’s own Errata, and
the Hearing made clear, however, that affixing the signature of Defendant’s counsel to the APMR
was a mistake (ECF 22; ECF 23; ECF 27). In fact, Defendant’s counsel had never met and
conferred with Mr. Holdsworth, nor agreed to a schedule or authorized its signature on the APMR
(ECF 22 at 2–3; ECF 23 at 1–2; ECF 27). At the Hearing on these issues Mr. Holdsworth admitted
that: (1) besides one ten-day vacation out of the country, he had no justifiable excuses for late
filings or for affixing Defendant’s counsel’s signature to the APMR but that both were not intended
to deceive the court, and that justice required his client’s case be permitted to go forward; (2)
monetary sanctions on him would be appropriate and unopposed; and (3) Defendant’s counsel’s
calculation of a total of six hours of extra work on the Motion to Dismiss, its request to submit for
decision (ECF 18), and its Response to the Motion for Scheduling Order, at a rate of $275 per hour,
was reasonable and unopposed (ECF 27).
II. 	LEGAL STANDARD
“The court generally may act sua sponte in imposing sanctions under the Rules.” Chambers
v. NASCO, Inc., 501 U.S. 32, 42 n.8 (1991) (mentioning Rule 37 and 16 as some of the rules under
which courts may impose sanctions sua sponte). “To guide its discretion in determining the
appropriateness of sanctions, a court must consider the factors set forth in Ehrenhaus v. Reynolds.”
Nursa Inc. v. Optima Care Jersey City LLC, No. 2:24-cv-00843-RJS-JCB, 2026 WL 905316, at *4
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(D. Utah April 2, 2026) (citing Klein-Becker USA, LLC v. Englert, 711 F.3d 1153, 1159 (10th Cir.
2013)); see also Ehrenhaus v. Reynolds, 965 F.2d 916, 920–21 (10th Cir. 1992). Additionally,
“Rule 41(b) involuntary dismissals should be determined by reference to the Ehrenhaus criteria.”
Mobley v. McCormick, 40 F.3d 337, 341 (10th Cir. 1994).
The Ehrenhaus factors are: (1) the degree of actual prejudice to the non-offending party;
(2) the amount of interference with the judicial process; (3) the culpability of the disobedient party;
(4) whether the court warned the disobedient party in advance that default judgment would be a
likely sanction for noncompliance; and (5) the efficacy of lesser sanctions. Ehrenhaus, 965 F.2d at
921 (citations omitted). Courts view dispositive sanctions as “a weapon of last, rather than first,
resort.” Id. at 920 (quoting Meade v. Grubbs, 841 F.2d 1512, 1520 n.6 (10th Cir. 1988), abrogated
in part on other grounds by Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Furthermore, dispositive
sanctions are only appropriate where “aggravating factors outweigh the judicial system’s strong
predisposition to resolve cases on their merits.” Id. at 921 (quoting Meade, 841 F.2d at1520 n.7).
III. 	DISCUSSION
Plaintiff’s counsel Mr. Holdsworth has indubitably missed multiple deadlines and
committed sanctionable behavior by violating multiple court orders. Mr. Holdsworth has admitted
as much himself (ECF 27).
A. Rule 16(f) and 37(b)(2) Sanctions
The court now considers whether to award Defendant attorney’s fees. Mr. Holdsworth
missed the deadline to comply with the Order to Propose Schedule (ECF 3; ECF 16) and missed
the deadline to comply with the Order to Comply (ECF 16; ECF 19; ECF 22 at 2–3). Mr.
Holdsworth has admitted to missing these deadlines (ECF 27). The Order to Propose Schedule and
the Order to Comply were issued pursuant to Rule 16 and 26(f) (ECF 3; ECF 16). Violation of
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these orders is therefore sanctionable conduct under Rule 16(f) and Rule 37(b)(2). Fed. R. Civ. P.
16(f), 37(b)(2).
Under Rule 37(b)(2)(A), “[i]f a party or a party’s officer, director, or managing agent . . .
fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35,
or 37(a), the court where the action is pending may issue further just orders.” The further orders
include:
(i) directing that the matters embraced in the order or other designated facts be taken as
established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or
defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit
to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii). Additionally, under Rule 37(b)(2)(C), “[i]nstead of or in
addition to the orders above, the court must order the disobedient party, the attorney advising that
party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure,
unless the failure was substantially justified or other circumstances make an award of expenses
unjust.” Fed. R. Civ. P. 37(b)(2)(C) (emphasis added).
Under Rule 16(f)(1), “[o]n motion or on its own, the court may issue any just orders,
including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to
appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate—
or does not participate in good faith—in the conference; or (C) fails to obey a scheduling or other
pretrial order.” Fed. R. Civ. P. 16(f)(1). Similar to Rule 37(b)(2)(C), Rule 16(f)(2) states that,
“[i]nstead of or in addition to any other sanction, the court must order the party, its attorney, or
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both to pay the reasonable expenses—including attorney’s fees—incurred because of any
noncompliance with this rule, unless the noncompliance was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 16(f)(2) (emphasis added).
Here, Mr. Holdsworth has offered no substantial justification for his violation of court
orders, besides mentioning one ten-day vacation, and he has said that monetary sanctions would
be appropriate (ECF 27). Therefore, the court does not find that Mr. Holdsworth’s failures to
comply with the court’s orders were substantially justified, and the court finds no circumstances
make an award of expenses unjust.
Defendant states it spent a total of six hours of work, at a rate of $275 per hour, as a result
of Mr. Holdsworth’s failure to comply with court orders—drafting and filing the Motion to
Dismiss, a request to submit for decision on the Motion to Dismiss, and the Reply (ECF 27).
Normally the court would conduct a lodestar analysis to determine the reasonableness of the
expenses, but here the rate is undoubtedly reasonable, and more importantly Mr. Holdsworth has
agreed that the time and rate are reasonable and appropriate.
Therefore, pursuant to Rule 16(f)(2) and 37(b)(2)(C), the court ORDERS Mr. Holdsworth
to pay to Defendant $1,650 within fourteen (14) days of the date of this Order for the six hours of
work Defendant spent as a result of Mr. Holdsworth’s failure to comply with court orders. The
court notes that, while, besides an award of attorney’s fees, other serious sanctions are possible
under Rule 16 and 37, the court does not find them appropriate given the Ehrenhaus analysis below.
B. Defendant’s 41(b) Motion to Dismiss for Failure to Prosecute
The undersigned now considers whether to recommend granting Defendant’s Motion to
Dismiss (ECF 17). Under Federal Rule of Civil Procedure 41(b), “[i]f the plaintiff fails to prosecute
or to comply with these rules or a court order, a defendant may move to dismiss the action or any
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claim against it.” Fed. R. Civ. P. 41(b). Defendant asserts that Plaintiff has failed to prosecute the
case because Plaintiff failed to timely serve Defendant, failed to timely respond to Defendant’s
motion to dismiss, failed to comply with the Order to Propose Schedule, and failed to comply with
the Order to Comply (ECF 22 at 2–3). These assertions have not been disputed by Mr. Holdsworth,
and it would be within the court’s authority to grant Defendant’s Motion to Dismiss (ECF 27)
under Rule 41(b). First, however, the court must consider the Ehrenhaus factors. Mobley, 40 F.3d
at 	341 	(“Rule 	41(b) involuntary 	dismissals 	should 	be 	determined 	by 	reference 	to
the Ehrenhaus criteria.”).
1. 	The Degree of Actual Prejudice to the Non-Offending Party
Defendant states that it “has appeared, attempted in good faith to comply with the Court’s
scheduling order, and expended time and resources to move the case forward, while Plaintiff has
remained entirely unresponsive. This conduct has resulted in unnecessary delay, uncertainty, and
avoidable litigation expense” (ECF 17 at 5). As for avoidable litigation expense, some of that has
been compensated for by the court’s award of attorney’s fees to Defendant for Mr. Holdsworth’s
violation of court orders.1 Otherwise, the undersigned agrees that Defendant has been prejudiced
by Mr. Holdsworth’s dilatory behavior. The undersigned finds the factor of prejudice weighs in
favor of Defendant.
2. 	The Amount of Interference with the Judicial Process
The undersigned finds that Mr. Holdsworth’s violation of court orders and tardiness in
replying to motions has interfered with the judicial process because it has delayed the progress of
the case, restricted Defendant’s access to discovery, forced the court to respond to otherwise
unnecessary motions, and undermined the authority of the court. See Villanueva Echon v. Sackett,
1 See supra Section III.A.
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809 	F. App’x 	468, 	473 	(10th 	Cir. 2020) 	(finding 	“[Plaintiff’s] 	noncompliance restricted
[Defendant’s] access to discovery and unnecessarily occupied [Defendant’s] and the district court’s
time with motions . . . which interfered with the judicial process”). Therefore, the factor of
interference with the judicial process also weighs in Defendant’s favor.
3. 	The Culpability of the Disobedient Party
Besides one vague reference at the Hearing to a single ten-day period of international
travel, Mr. Holdsworth has offered no justifications or mitigating circumstances to excuse his
actions (ECF 27). To his credit, however, Mr. Holdsworth has shown contrition (id.). Defendant
does not allege Mr. Holdsworth’s behavior has been in bad faith, and nothing at the Hearing
suggested Mr. Holdsworth’s behavior has been the result of bad faith. Therefore, the undersigned
finds that while Mr. Holdsworth is culpable, in the sense of mere responsibility, his actions were
not in bad faith.
4. 	Whether the Court Warned the Disobedient Party in Advance that Dismissal would Be a Likely
Sanction for Noncompliance
The court’s January 29, 2026, order denying Defendant’s first motion to dismiss clearly
warned Mr. Holdsworth in advance that dismissal was a possible sanction for noncompliance (see
ECF 14 at 2 (“[T]he court warns Plaintiff that continuing to miss deadlines may result in sanctions,
potentially including dismissal of the case.”)). Therefore, this factor weighs in favor of Defendant.
5. 	The Efficacy of Lesser Sanctions
The undersigned finds this factor most strongly points towards not dismissing the case.
While Mr. Holdsworth has directly violated two court orders, has filed multiple late motions, and
has been warned by the court, he has not so far been sanctioned at all. Under the facts here, where
he has not been sanctioned at all, there is little evidence to suggest that the only effective sanction
would be the harshest possible sanction—dismissal. The undersigned therefore does not find
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convincing Defendant’s argument that lesser sanctions than dismissal would be ineffective (ECF
17 at 6). In order to address Mr. Holdsworth’s dilatory behavior the court is awarding Defendant
attorney’s fees and expenses which Mr. Holdsworth must pay.2 The undersigned finds that this will
likely deter Mr. Holdsworth from future dilatory behavior or violation of court orders.
Therefore, in light of the analysis of the Ehrenhaus factors above, the undersigned
RECOMMENDS that Defendant’s Motion to Dismiss be DENIED. The undersigned finds that the
attorney’s fees awarded by the court pursuant to Rule 16 and 37 will likely be effective in deterring
future disobedience from Mr. Holdsworth.
C. Plaintiff’s Motion for Scheduling Order
The court now considers whether to grant Plaintiff’s Motion for Scheduling Order (ECF
21). As filed by Mr. Holdsworth, the APMR contained Defendant’s counsel’s signature, and was
styled as a stipulated proposed schedule (ECF 20 at 1, 7). Defendant’s Response to the Motion for
Scheduling Order, and Mr. Holdsworth’s own Errata, made clear that affixing the signature of
Defendant’s counsel to the APMR was a mistake, and that Defendant’s counsel had never met and
conferred with Mr. Holdsworth, nor agreed to a schedule or authorized its signature on the APMR
(ECF 22 at 2–3; ECF 23 at 1–2). At the Hearing on these issues Mr. Holdsworth admitted that he
had no justifiable excuse other than mere negligence for affixing Defendant’s counsel’s signature
to the APMR, because no meeting had occurred (ECF 27). No excuse is given in the Errata either
(ECF 23). Finally, the APMR and Motion for Scheduling Order were filed late, beyond the
deadline required by the Order to Comply (ECF 16).
For the reasons stated, the court DENIES Plaintiff’s Motion for Scheduling Order (ECF
21) and directs the Clerk’s Office to strike the associated APMR (ECF 20). In order to move the
2 See supra Section III.A.
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case forward and prevent further delay, the court ORDERS the parties to meet and confer and file
a stipulated motion for scheduling order, along with an attorney planning meeting report, and a
proposed scheduling order, within seven days of this Order.
IV. 	ORDER
For the reasons stated above the court hereby ORDERS as follows:
1. 	Plaintiff’s counsel Mr. Holdsworth shall pay Defendant in the amount of $1,650 within
fourteen (14) days of the date of this Order.
2. 	The court DENIES Plaintiff’s Motion for Scheduling Order (ECF 21).
3. 	The court directs the Clerk’s Office to strike the APMR (ECF 20).
4. 	The court ORDERS the parties to, within seven (7) days of the date of this Order, meet
and confer and file a stipulated motion for scheduling order along with an attorney
planning meeting report and proposed scheduling order.
V. 	RECOMMENDATION
For the reasons stated above the undersigned hereby RECOMMENDS as follows:
1. 	Defendant’s Motion to Dismiss (ECF 17) be DENIED.
2. 	Mr. Holdsworth be warned that further missed deadlines or violation of court orders will
likely result in dismissal of the case.
NOTICE
Copies of the foregoing Report and Recommendation are being sent to all parties who are
hereby notified of their right to object. Within fourteen (14) days of being served with a copy, any
party may serve and file written objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure
to object may constitute a waiver of objections upon subsequent review.
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DATED this 27 July 2026.
Chief Magistrate Judge Cecilia M. Romero
United States District Court for the District of Utah
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