Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Drewno v. Marvin Lumber and Cedar Co.

United States District Court, N.D. Indiana, South Bend Division

November 7, 2017




         Before the Court is Defendant Marvin Lumber and Cedar Company's Motion to Dismiss, or in the Alternative, to Transfer Venue. [DE 14] To summarize, Marvin asks the Court to: (1) dismiss Plaintiffs' action under Fed.R.Civ.P. 41(b) and Local Rule 41-1 for failure to prosecute; or, in the alternative, (2) dismiss the action pursuant to Fed.R.Civ.P. 12(b)(3) or otherwise transfer it pursuant to 28 U.S.C. § 1406(a), or (3) transfer the action to the Western District of Michigan pursuant to 28 U.S.C. § 1404(a). For the reasons stated herein, the Court will grant Marvin's alternative request to transfer the case to the Western District of Michigan pursuant to § 1404(a).


         John and Tina Drewno reside in Cassopolis, Michigan, and filed a lawsuit in Elkhart County Superior Court for breach of agreement, breach of warranty, and negligence stemming from the installation of Marvin's windows and accessories in their home.[1] [DE 4; DE 5] Marvin, a Minnesota corporation, removed the case to this Court on April 12, 2016 [DE 1], but did not submit a copy of “all process, pleadings, and orders served upon [it], ” as required by 28 U.S.C. § 1446(a), until the Magistrate Judge specifically ordered Marvin to do so in his March 21, 2017, Order. [DE 13] Marvin then supplemented its Notice of Removal with these documents on March 24, 2017. [DE 15]

         Between April 2016 and March 2017, nothing of substance occurred in this case. On March 9, the Court ordered the Drewnos to file a status report showing why their case should not be dismissed for failure to prosecute. [DE 10] The Drewnos' subsequent report [DE 11] failed to provide the information necessary to move the case forward, but the Court noted that Marvin's failure to file its state court pleadings along with its Notice of Removal largely prevented the Court from setting a preliminary pretrial scheduling conference or ordering the parties to meet and confer under Fed.R.Civ.P. 26(f). [DE 13]


         1. Failure to Prosecute

         Under Fed.R.Civ.P. 41(b), a defendant may move to dismiss an action if the plaintiff fails to prosecute the case. More specifically, Local Rule 41-1 allows for the Court to dismiss an action with costs for failure to prosecute if: (1) no activity occurs for six months; (2) the Court or clerk notifies the parties that the case will be dismissed for failure to prosecute; and (3) at least 28 days have passed between the notice and dismissal. The heart of Marvin's argument for dismissal under these rules is that the Drewnos failed to show cause in response to the March 9, 2017, Order as to why the case had not moved forward. However, the Court did not subsequently find that the Drewnos failed to show cause to the level warranting dismissal for failure to prosecute. Instead, as discussed above, Marvin, not the Drewnos, prevented the Court from moving the case forward by failing to supplement the record with the requisite underlying state court documents upon removal. [DE 13 at 2] Without the associated process, pleadings, or orders, the Court could not set a scheduling conference or order the parties to meet and confer. Id. Marvin cannot complain of the Drewnos' failure to prosecute their lawsuit when its own inactions kept the case from getting off the ground.

         Regardless, the standard for dismissal under Fed.R.Civ.P. 41 remains too high for the facts and procedural posture here. “The court should exercise this right sparingly and should dismiss a case under Rule 41 only ‘when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing.'” Salata v. WeyerhauserCo., 757 F.3d 695, 699 (quoting Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983)). In addition, the Court cannot dismiss a suit following the first transgression without exploring other options or explaining why they would not be fruitful, and must provide more than a standalone warning that the case may be dismissed for failure to prosecute. Sroga v. Huberman, 722 F.3d 980, 982 (7th Cir. 2013). Overall, on a motion to dismiss for failure to prosecute, the Court should:

take full and careful account of the frequency and magnitude of the plaintiff's failures to comply with deadlines for the prosecution of the suit, the apportionment of responsibility for those failures between the plaintiff and his counsel and therefore the appropriateness of sanctioning the plaintiff's lawyer rather than the plaintiff, the effect of the failures in taxing the judge's time and disrupting the judge's calendar to the prejudice of other litigants, the prejudice if any to the defendant from the plaintiff's dilatory conduct, the probable merits of the suit, and (what is closely related) the consequences of dismissal for the social objectives of the type of litigation that the suit represents.

Ball v. City of Chicago, 2 F.3d 752, 759-60 (7th Cir. 1993).

         Here, consideration of these various factors weighs strongly against dismissal. First, the docket lacks any clear record of delay or contumacious conduct by the Drewnos. While more proactivity on the Drewnos' part may have been helpful, they did not commit repeated or substantial violations of Court deadlines. Indeed, the Court had not even issued a pretrial schedule because Marvin removed the matter from state court without attaching the required process, pleadings, and orders. Furthermore, when taking into account the lack of activity in this case, the delay has neither disrupted the Court's calendar nor prejudiced litigants with other matters pending before it. Finally, Marvin does not argue that the delay in this case has prejudiced it in any way. For these reasons, the Court will refrain from dismissing the action for failure to prosecute.

         2. Venue is Proper in the Northern District of Indiana

         Marvin requests alternatively that the Court either dismiss the case under Fed.R.Civ.P. 12(b)(3) or transfer it to the Western District of Michigan pursuant to 28 U.S.C. § 1406(a). The Court will deny both of these requests for ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.