United States District Court, E.D. Wisconsin
JHB INVESTMENTS, LLC and JOHN H. BAGLEY Plaintiffs,
CITY OF WEST BEND, GWENN SOLDNER, TJ JUSTICE, and KURTIS McMAHON, Defendants.
ORDER DISMISSING CASE FOR LACK OF DILIGENCE UNDER
CIVIL L.R. 41(C)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
January 5, 2017, the defendants removed this case from
Washington County Circuit Court to the federal court for the
Eastern District of Wisconsin. Dkt. No. 1. The plaintiffs did
not move for remand. Six weeks later, on February 17, 2017,
the court received a letter from Attorney Aaron DeKosky of
Padway & Padway, Ltd., indicating that the plaintiffs had
hired him to represent them. Dkt. No. 10. Once Attorney
DeKosky was on board, the plaintiffs agreed to dismiss
several of the defendants named in the original complaint.
Dkt. No. 14.
April 24, 2017, the plaintiffs filed an amended complaint,
dkt. no. 17, and the four remaining defendants answered on
May 9, 2017, dkt. no. 18. The court conducted a Rule 16
scheduling conference on October 5, 2017; at that time, the
court set a deadline of April 30, 2018 for completing
discovery, and a deadline of May 16, 2018 for the parties to
file dispositive motions. Dkt. No. 21.
December 29, 2017, Attorney Dekosky filed an unopposed motion
to withdraw from representing the plaintiffs. Dkt. No. 22. As
is the court's usual practice, before the court granted
that motion, the court wanted to ensure that the individual
plaintiff, John Bagley, understood that he could not
represent JHB Investments, LLC, because under both Wisconsin
and federal law, the LLC plaintiff had to be represented by
counsel. Accordingly, the court scheduled a status conference
for February 5, 2018. The court provided plaintiff Bagley
with notice of the February 5, 2018 hearing and ordered him
to appear by phone or in person in court. See
Text-Only Order January 23, 2018. Bagley did not appear at
the February 5, 2018 status conference. Dkt. No. 23. During
the hearing, Attorney Dekosky indicated that one of the
reasons that he had moved for withdrawal was that he had had
difficulty communicating with defendant Bagley. Id.
In response to the court's request, Attorney Dekosky
provided the court with Bagley's contact information, and
indicated that it would make an effort to reach him.
court's staff was able to reach Bagley, but had
difficulty setting up a scheduling conference. This
difficulty resulted in the court issuing an order on April 3,
2018, in which the court granted Attorney Dekosky's
unopposed motion to withdraw. Dkt. No. 24. The court
described its efforts to contact Bagley:
First, the court's staff emailed Bagley. He did not
respond. Next, the court's staff called Bagley, who
indicated that he had gotten the email, and that he had
forwarded it to someone. When asked about dates for a
hearing, plaintiff Bagley indicated that he was not in his
office, and asked the court's staff to call him back
later that afternoon. When staff called later that afternoon,
Bagley said he was in his car and could not discuss dates. He
asked staff to call him at 9:00 the next morning. Staff did
so, and the phone went to voice-mail; staff left a message
asking Bagley to call back to discuss the hearing dates. Mr.
Bagley did not call back.
Id. at 3.
the fact that these efforts had failed, the court's April
3, 2018 order gave Bagley one last chance to appear, so the
court could explain what he needed to do if he wanted the
case to go forward with both plaintiffs. The April 3, 2018
order set a hearing for April 24, 2018 at 11:00 a.m., and
the plaintiffs must appear at that hearing if they wish to
pursue this case further. Plaintiff John Bagley may represent
himself, if he chooses to do so, but he must appear at the
hearing regardless. JHB Investments must appear at the
hearing represented by a lawyer.
John Bagley may not appear for JHB Investments on April 24.
Id. at 4 (emphasis in original). In the very last
paragraph of the court's April 3, 2018 order, the court
warned Bagley that “If the plaintiffs do
not appear, either by phone or in
person, at the April 24, 2018 hearing, the
court will dismiss this case for
lack of prosecution under Civil. L.R. 41
(E.D.Wis.).” Id. (emphasis in
did not appear at the hearing on April 24, 2018.
Local Rule 41(c) of the Local Rules for the Eastern District
of Wisconsin allows a court to dismiss a case with or without
prejudice “whenever it appears to the court that the
plaintiff is not diligently prosecuting the action[.]”
The court finds that the plaintiffs have not diligently
prosecuted this case, and will dismiss it. The remaining
question is whether the dismissal should be with or without
prejudice. At the April 24, 2018 hearing, the defendants
asked the court to dismiss the case with prejudice, given
Bagley's lack of cooperation with his attorney and the
court, and the delay it had caused. The court agrees. The
justice system is open and available to those who want to use
it in good faith, to pursue their rights and to resolve their
disputes in an orderly and fair way. But the system requires
something of the people who want to use it. It requires that
they follow the rules, and participate in good faith. The
plaintiffs have not done that here, and the court finds that
dismissal with prejudice is appropriate.
court ORDERS that this case is
DISMISSED WITH PREJUDICE for lack of
diligence under Civil L.R. 41. The clerk of court shall enter
order and the judgment to follow are final. Under Civil Local
Rule 41(c), a party whose case has been dismissed may, within
twenty-one (21) days of the date of the
dismissal order, file a petition asking the court to
reinstate the case. A dissatisfied party also may appeal the
order of dismissal to the Court of Appeals for the Seventh
Circuit, by filing in this court a notice of appeal within
thirty (30) days of the entry of judgment.
See Fed. R. App. P. 3, 4. This court may extend this
deadline if a party ...