United States District Court, E.D. Wisconsin
DONDRAS L. HOUSE, Plaintiff,
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR
FAILURE TO PROSECUTE (DKT. NO. 20)
PAMELA PEPPER United States District Judge
case comes before the court on defendant State Farm Fire and
Casualty Company's motion to dismiss for failure to
prosecute or, in the alternative, to enter an order
compelling the plaintiff to produce his discovery responses.
Dkt. No. 20. For the reasons explained below, the court will
grant the defendant's motion, and will dismiss this
action without prejudice.
case relates to an alleged property theft at the
plaintiff's apartment. The plaintiff presented an
insurance claim to the defendant, which denied the claim. The
plaintiff, proceeding without a lawyer, then filed a
complaint alleging that the defendant breached its insurance
contract and acted in bad faith. Dkt. No. 1. The defendant
answered the complaint, and Judge Randa held a Rule 16
scheduling conference on June 1, 2016. The parties agreed to
make their initial disclosures under Federal Rule of Civil
Procedure 26 by May 25, 2016, and on June 3, 2016, the
defendant served its first set of written discovery requests
to the plaintiff. Dkt. Nos. 22-9, 22-13. On July 6, 2016, the
defendant sent a letter to the plaintiff informing him that
the defendant still had not received his initial disclosures,
and asking the plaintiff to tell the defendant when his
discovery responses would be served. Dkt. No. 22-10. Later
that month, on July 29, 2016, the defendant sent a second
letter to the plaintiff, asking him to participate in a
telephonic meet-and-confer session regarding the status of
the plaintiff's discovery responses. Dkt. No. 22-11.
August 5, 2016, the plaintiff told the defendant that he no
longer wanted to continue the litigation. Dkt. No. 22,
¶16. Then, on August 18, 2016, the plaintiff served a
document which he characterized as his responses to the
defendant's first set of written discovery requests.
Id., ¶17. The defendant sent the plaintiff a
certified letter, dated August 31, 2016, regarding his
failure to serve his initial disclosures and failure to
respond to the defendant's first set of written discovery
requests. Dkt. No. 22-13. According to the defendant, the
plaintiff's discovery responses were deficient in many
ways, and he refused to produce any documents in response to
the defendant's document requests. Id. at 1-2.
In that letter, the defendant asked the plaintiff to respond
to that letter by September 16, 2016 (which the plaintiff
failed to do), and explained to the plaintiff that the
defendant would presume the plaintiff did not intend to
comply with his discovery obligations if he failed to respond
by September 23, 2016. Id. at 2.
October 10, 2016, after the case had been reassigned to this
court, the defendant filed its motion to dismiss. Dkt. No.
20. The motion asks the court to dismiss the case under
Fed.R.Civ.P. 41(b) for the plaintiff's failure to
prosecute or, in the alternative, to enter an order
compelling the plaintiff to serve his initial disclosures and
respond to the defendant's outstanding written discovery
requests. Id. The plaintiff did not respond to that
motion within the time allowed under the court's local
rules. Because the court was uncertain whether the plaintiff
knew that he had a right to respond to the motion, the court
issued an order allowing the plaintiff to file a response to
the defendant's motion by December 2, 2016. Dkt. No. 23.
The court warned the plaintiff that if he did not respond to
the motion, the court would decide the motion without the
plaintiff's input and could dismiss the case.
Id. at 3. The plaintiff did not respond to the
defendant's motion or file any document in response to
the court's order, and the court's order did not come
back as undeliverable.
Civ. P. 41(b) states, “[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 claim against
it.” The rule further states that, “[u]nless the
dismissal order states otherwise, a dismissal under this
subdivision . . . operates as an adjudication on the
Seventh Circuit has acknowledged that dismissal of a lawsuit
is an “extreme sanction, ” and that dismissal for
failure to prosecute is “draconian.” In re
Bridgestone/Firestone, Inc. Tires Prods. Liab. Litig.,
124 F. App'x 452, 456 (7th Cir. 2005) (citing Maynard
v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003)). For that
reason, a court may dismiss for failure to prosecute only
“when there is a clear record of delay or contumacious
conduct, or when other less drastic sanctions have proven
unavailing.” Id. The court must warn the party
that dismissal is possible, id., and must consider
“among other things, the frequency and magnitude of the
plaintiff's failure to prosecute, the likelihood of
success on the merits, prejudice to the defendant, and the
impact of delay on the court's docket.”
Id. (citing Aura Lamp & Lighting, Inc. v.
Int'l Trading Corp., 325 F.3d 903, 908 (7th Cir.
case, the court's October 10, 2016 order clearly warned
the plaintiff that the court could dismiss his case if he did
not respond to the defendant's motion to dismiss. The
court also finds that there is a clear record of delay. The
plaintiff has not served his initial disclosures or
participated meaningfully in the discovery process or the
meet-and-confer sessions requested by the defendant. Because
the plaintiff failed to comply with Fed.R.Civ.P. 26 and 33,
did not participate in the meet-and-confer sessions the
defendant attempted to convene, and did not respond to the
defendant's motion to dismiss, the court finds that the
plaintiff has “persisted in neglecting the case . . .
.” In re Bridgestone/Firestone, Inc., 124 F.
App'x at 457. For that reason, the court finds that it is
appropriate to dismiss the case. Because the plaintiff is not
represented, however, the court will dismiss the action
reasons explained above, the court GRANTS the defendant's
motion to dismiss, Dkt. No. 20, and ORDERS that this case is
DISMISSED WITHOUT PREJUDICE for failure to prosecute.