United States District Court, E.D. Wisconsin
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH
COSTS (DKT. NO. 35), DISMISSING PLAINTIFF'S CASE WITH
PREJUDICE FOR LACK OF DILIGENT PROSECUTION AND ORDERING THE
PLAINTIFF TO PAY DEFENDANTS' COSTS
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
15, 2019, the defendants moved to dismiss this case based on
the plaintiff's failure to respond to their discovery
requests and to participate meaningfully in a deposition
after the plaintiff cancelled his first deposition and left
his second before it had completed. Dkt. No. 27. On June 10,
2019, when the plaintiff had failed to respond to the motion
to dismiss, Magistrate Judge William E. Duffin (to whom the
case was assigned for pretrial case management) ordered the
plaintiff to show cause why the court shouldn't dismiss
the case. Dkt. No. 31. The plaintiff responded to the
show-cause order (saying that he felt bullied and mistreated
by the lawyers, and asked Judge Duffin to appoint a lawyer
for him), dkt. no. 32, and on July 1, 2019, Judge Duffin
denied the motion to dismiss, dkt. no. 33. He also denied the
plaintiff's motion to appoint counsel, noting that the
plaintiff had not demonstrated that he'd tried to find a
lawyer on his own, and had not shown that the case was so
complicated that he could not handle it himself. Id.
at 3. Finally, Judge Duffin also ordered the plaintiff to
respond to the defendants' discovery requests within
thirty days, to meaningfully participate in a third
deposition and to pay a $50 fine at the third deposition as a
sanction for failure to cooperate during the second.
Id. at 2-3. Judge Duffin warned the plaintiff that
if he failed to comply with any part of the order, the court
would dismiss the case. Id. at 4.
August 15, 2019, Judge Duffin held a telephonic status
conference. Dkt. No. 34. The plaintiff did not appear for the
conference. Id. at 2. The defendants notified Judge
Duffin that although the plaintiff had agreed to a date for
his third deposition, and although they had sent him notice
via text message and certified mail of the deposition six
days before the date scheduled for the deposition, the
plaintiff had not appeared for the deposition. Id.
August 26, 2019, the defendants filed a renewed motion to
dismiss, requesting an award of costs. Dkt. No. 35. The
defendants assert that dismissal is appropriate under Federal
Rule of Civil Procedure 41(b) because the plaintiff has
refused to cooperate with the discovery process and has not
complied with the court's orders. Dkt. No. 36 at 5. The
defendants also seek reimbursement of $763.30 in costs for
the second and third depositions under Fed.R.Civ.P. 54(d)(1).
Id. at 6-7. The defendants note that the plaintiff
is no longer incarcerated and has gainful employment.
Id. at 6.
court has discretion to dismiss a case as a sanction for the
plaintiff's behavior. Greyer v. Ill. Dep't of
Corr., 933 F.3d 871, 880 (7th Cir. 2019)
(“[D]istrict courts remain empowered to sanction
extreme bad-faith conduct.”). Any sanction, including
dismissal, must be proportionate to the circumstances.
Donelson v. Hardy, 931 F.3d 565, 569 (7th Cir. 2019)
(discussing the factors relevant when considering whether to
dismiss a case). The court may consider factors including the
extent of the party's misconduct, the ineffectiveness of
lesser sanctions, any harm from the misconduct and the
strength of the case. Id.
Duffin warned the plaintiff that the court would dismiss the
case if he failed to comply with any part of the July 1,
2019, order. The warning was not effective; the plaintiff
does not appear to have complied with any part of the order
and didn't appear for the scheduled telephonic status
conference on August 15, 2019. The plaintiff's failure to
appear alone is a ground for the court to impose sanctions.
See Fed.R.Civ.P. 16(f)(1)(A). The plaintiff also
failed to respond to the defendants' motion to dismiss,
which gives the court cause to grant the defendants'
motion. See Civil L.R. 7(d) (“Failure to file
either a supporting memorandum or other papers . . . is
sufficient cause for the Court to deny the motion.”)
Nor did the plaintiff respond to the defendants' first
motion to dismiss, until Judge Duffin issued a show-cause
case has been pending for over seventeen months, and it has
been four months since the plaintiff's response to the
defendants' first motion to dismiss was due. Judge Duffin
set a deadline of May 3, 2019 for the parties to complete
discovery, including depositions, but the defendants
haven't been able to meet that deadline because of the
plaintiff's actions (or inaction). The case has been
unable to move forward because of the plaintiff's failure
to cooperate with discovery or to respond to motions. The
plaintiff brought the lawsuit. If he wants relief from the
court, he must comply with the local and federal rules, and
he must comply with the court's orders.
the plaintiff has shown bad faith by refusing to cooperate
with discovery, failing to comply with court orders and
failing to appear for at least one hearing, dismissal with
prejudice is an appropriate sanction. Fed.R.Civ.P. 41(b);
Civil L.R. 41(c) (“Whenever it appears to the Court
that the plaintiff is not diligently prosecuting the action .
. . the Court may enter an order of dismissal with or without
prejudice). The court also will order the plaintiff to pay
the defendants' costs under Fed. R Civ. P. 54(d)(1).
See Donelson, 931 F.3d at 570 (“Because the
district court dismissed the suit with prejudice, the
defendants were prevailing parties entitled to
court GRANTS the defendants' motion to
dismiss. Dkt. No. 35.
court ORDERS that the case is
DISMISSED WITH PREJUDICE based on the
plaintiff's failure to diligently prosecute it. The court
will enter judgment accordingly.
court GRANTS the defendants' motion for
an award of costs. Dkt. No. 35. The court
ORDERS that within fourteen days of the date
of this order, the defendants must file and serve on the
plaintiff a bill of costs. See Civil L.R. 54(a)(1).
The plaintiff must file any objection to the bill of costs
within fourteen days of receiving it, ...