United States District Court, E.D. Wisconsin
ROBERT J. BUECHEL, Plaintiff,
NANCY BOWENS, PATRICK MURPHY, MD, MELANIE BERNIER, and JOHN AND JANE DOES, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS FOR PLAINITFF'S FAILURE
TO PROSECUTE AND FAILURE TO APPEAR AT HIS DEPOSITION OR,
ALTERNATIVELY, STAY THE DISPOSITIVE MOTION DEADLINE (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
the plaintiff filed his complaint in February 2018, he was in
custody at Oshkosh Correctional Institution. Dkt. No. 1 at
15. On May 31, 2018, the clerk's office received a notice
from the plaintiff, indicating that he was going to be
released from Oshkosh on June 5, 2018 and that his new
address would be P.O. Box 213, Fond du Lac, WI 54936. Dkt.
No. 16. Since then, the court has heard nothing from the
plaintiff-it has not received any correspondence or pleadings
from him in the last nine months.
defendants have asked the court to dismiss the
plaintiff's case for failure to prosecute and failure to
appear at his deposition. Dkt. No. 27. The defendants also
ask that the court stay the deadline for dispositive motions
pending the outcome of this motion. Id.
defendants explain that on January 16, 2019, they served the
plaintiff-by certified and regular mail-with notice that they
planned to depose him on February 5, 2019. Id. They
attach the notice of deposition-it is addressed to the
plaintiff at the PO Box address the plaintiff provided to the
court. Dkt. No. 29-1 at 2. They also attach the returned
certified mail envelope, which bears the same address.
Id. at 4. The envelope is postmarked January 16,
2019; it bears a red stamp that says, “1st NOTICE,
” next to which someone has handwritten,
“1-18-19;” a red stamp that says “2nd
NOTICE, ” next to which someone has handwritten
“1-23-19, ” and a red stamp that says
“RETURNED, ” next to which someone has
handwritten “2-2-2019.” Id. There is a
yellow “RETURN TO SENDER” sticker affixed to the
envelope. It is dated February 8, 2019, and reads,
“UNCLAIMED UNABLE TO FORWARD.” Id. The
defendants assert that because the certified mail envelope
shows that the first delivery attempt was made on January 18,
2019, “[i]t follows that the regular mail was delivered
to the Plaintiff's post office box on that same
day.” Dkt. No. 28 at 2. The defendants state that the
plaintiff neither appeared for the February 5, 2019
deposition nor contacted them to reschedule. Id. The
defendants assert that days later, on February 12, 2019, they
received the certified mail receipts showing that the notice
couldn't be delivered and had been returned as unclaimed.
Id. The defendants say that the regular mail notice
was not returned as undelivered, and that they have received
no indication that it wasn't delivered and no indication
that there is a forwarding address. Id. at 2-3.
defendants argue that the plaintiff has failed to provide the
court and the defendants with a proper address and urge the
court to dismiss his case for failure to prosecute.
Id. at 4-5. In the alternative, they ask the court
to require the plaintiff to pay the cost of the missed
deposition before allowing him to proceed with the suit.
Id. at 4. Finally, they ask the court to stay the
dispositive motions deadline. Id.
Fed.R.Civ.P. 37(d)(1)(A)(i), a party who “fails, after
being served with the proper notice, to appear for that
person's deposition” may be sanctioned by the
court. Such sanctions include ordering dismissal of the case.
Fed.R.Civ.P. 37 (2)(A)(v). Similarly, Fed.R.Civ.P. 41(b)
allows a defendant to ask the court to dismiss a case for
failure to prosecute it. Whether to grant such a motion is
within the court's discretion.
court realizes that it is costly and frustrating for a party
to schedule a deposition, appear at that deposition and find
the deponent missing with no explanation. It is a waste of
time and resources. The court suspects, however, that this is
not the first time that counsel for the defendants has
encountered such a situation in a case involving a pro
se prisoner. The plaintiff was released from custody
last summer. The defendants may be right that he has chosen
not to pursue this suit now that he is out, but it is not
comfortable exercising its discretion to dismiss the
plaintiff's case on an assumption that the mailed version
of the notice must have gotten to the plaintiff, or that the
plaintiff has a different address and has not notified the
court of that fact. In fact, the court's staff recently
has spoken with the plaintiff's probation officer and
learned of a new address. It is possible that in the
confusion of events surrounding his release and transition
back into the community, the plaintiff simply forgot to
advise the court of this new address.
court will deny the defendants' request to dismiss the
case and to require the plaintiff to pay the cost of the
deposition prior to proceeding with the case. The court will
grant the defendants' request to stay the dispositive
motion deadline. It also will give the plaintiff the
opportunity to update the court with his new address. If the
court receives a notice of change of address from the
plaintiff by the deadline it sets below, the court will allow
the defendants to schedule another deposition and will set
new deadlines. If the plaintiff fails to update the court
will his new address by the deadline, the court may dismiss
of the case for the plaintiff's failure to diligently
pursue it. See Civ. L.R. 41(c) (E.D. Wis.).
court ORDERS that the defendants' motion
to dismiss for plaintiff's failure to prosecute and
failure to appear at his deposition or, alternatively, motion
to stay the dispositive motion deadline is
DENIED to the extent that it seeks dismissal
of the case and payment of the costs of the deposition. Dkt.
court ORDERS that the defendant's motion
is GRANTED to the extent that it asks the
court to stay the dispositive motions deadline. Dkt. No. 27.
court ORDERS that the dispositive motion
deadline of March 21, 2019, set in the court's October
22, 2018 scheduling order, is STAYED until
further order of the court.
court ORDERS that by the end of the day on
Monday, March 25, 2019, the plaintiff shall
provide the court with an accurate mailing address. If the
court does not receive a change-of-address notice by the end
of the day on March 25, 2019, the court will dismiss the case
for failure to prosecute it.
court will send a copy of this order to Robert Buechel at
¶ 6905 Shady Brook ...