United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION TO DISMISS (DKT. 17)
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT
December 27, 2017, Plaintiff pro se sued Defendant,
her employer, for employment discrimination under Title VII
and 42 U.S.C. § 1981. Dkt. 1. Now before the Court is
Defendant's motion to dismiss Plaintiff's complaint
under Federal Rules of Civil Procedure 37(b)(2) and 41(b).
Dkt. 17. For the reasons below, the motion is granted in
April 25, 2018, Magistrate Judge Matthew P. Brookman held a
telephonic status conference at which Plaintiff did not
appear. Dkt. 15. Judge Brookman issued an order to Plaintiff
to show cause within thirty days for the failure to appear
and why her complaint should not be dismissed without
prejudice. Dkt. 16. Plaintiff did not respond.
5, 2018, Defendants filed this motion to dismiss
Plaintiff's complaint with prejudice as a sanction for
her failure to comply with Judge Brookman's orders,
see Fed. R. Civ. P. 37(b)(2), and for failure to
litigate her lawsuit. See Fed. R. Civ. P. 41(b).
According to Defendant, in addition to her failures to appear
for the status conference and to comply with Judge
Brookman's order to show cause, Plaintiff has also failed
to comply with Judge Brookman's March 19, 2018,
scheduling order by failing to provide a witness list by
April 3, 2018; failing to provide documents in her possession
relevant to her case by April 3, 2018; and failing to provide
an estimate of her damages by April 3, 2018.
the date of this order, nothing has been heard from Plaintiff
for more than three months. It has been almost six months
since Plaintiff's last (and only) filing in this matter,
Chief Judge Magnus-Stinson recently explained in an analogous
Rule 37(b)(2) provides that the Court may issue a variety of
sanctions for failure to “obey an order to provide or
permit discovery, ” including “dismissing the
action or proceeding in whole.” Fed.R.Civ.P.
3(b)(2)(A). Rule 41(b) explains that “a defendant may
move to dismiss the action or any claim against it”
where a “plaintiff fails to prosecute or to comply with
these rules or a court order.” Fed.R.Civ.P. 41(b).
The decision to dismiss a lawsuit . . . is committed to the
sound discretion of the District Court. Ramirez v.
T&H Lemont, Inc., 845 F.3d 772, 782 (7th Cir. 2016);
McInnis v. Duncan, 697 F.3d 661, 664 (7th Cir. 2012)
(per curiam). Dismissal is . . . [a] drastic sanction,
appropriate when “there is a clear record of delay or
contumacious conduct, ” such as a pattern of failure[s]
to comply with Court orders. McInnis, 697 F.3d at
664(quoting Kasalo v. Harris & Harris, Ltd., 656
F.3d 557, 561 (7th Cir. 2011)). While the Court should
“consider less severe sanctions before dismissing for
failure to prosecute, ” there is no requirement of
“progressive discipline” or “‘warning
shot[s]' in the form of less severe sanctions.”
Id. at 665 (collecting cases). Dismissal for lack of
prosecution generally requires forewarning, which may be
provided by an opposing party's motion to dismiss.
Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 666
(7th Cir. 2006).
Baldwin v. Wittl, No. 1:17-cv-823, 2018 WL 558538,
at *2 (S.D. Ind. Jan. 25, 2018) (Magnus-Stinson, C.J.).
Baldwin, the court dismissed plaintiff's
complaint with prejudice after he “failed to comply
with the Court's Order compelling discovery, failed to
respond to three Motions to Dismiss, failed to appear for a
telephonic status conference, and failed to respond to the
Court's Order to Show Cause.” Id. (docket
citations omitted). Defendant argues that this case is
“virtually indistinguishable” from
Baldwin. Br. Supp. 3. That is not quite right: the
pattern of noncompliance was somewhat clearer and more
protracted there than it is here and, more importantly, the
plaintiff in Baldwin was represented by counsel;
Plaintiff here is not.
even a pro se litigant must follow the rules and the
Court's orders, Cady v. Sheahan, 467 F.3d 1057,
1061 (7th Cir. 2006); United States v. Funds in the
Amount of $574, 840, 109 F.Supp.3d 1043, 1047 (N.D. Ill.
2015), which Plaintiff has not. And a pro se
litigant can be expected to meet a clearly stated deadline
just as well as a represented litigant can. In his order to
show cause, Judge Brookman warned Plaintiff that her failure
to comply might result in dismissal of her complaint without
prejudice. At this point in the case, we find Judge
Brookman's to be the appropriate course.
(1) Plaintiff's complaint will be dismissed without
prejudice. That means that Plaintiff will only be able to
continue her lawsuit if she files (a) a motion for permission
to file a new or ...