United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING MOTION TO DISMISS
PATRICK HANLON UNITED STATES DISTRICT JUDGE
years ago, Mohit Kumar filed a complaint alleging Tata
Consultancy Services Limited discriminated against him
because of his nationality. Since then, Mr. Kumar has not
responded to discovery, appeared for his depositions,
responded to motions, or provided a settlement demand. Tata
has moved to dismiss this case. Because Mr. Kumar has failed
participate in the case in violation of two Court orders, the
Court GRANTS the motion and
DISMISSES the case with prejudice. Dkt.
Facts and Background
Kumar alleges that Tata terminated his employment and
retaliated against him because of his nationality. Dkt. 1 at
4; dkt. 1-1. After filing his pro se complaint in
May 2017, Mr. Kumar retained counsel from November 2017 until
March 2018. Since March 2018, Mr. Kumar has again litigated
the case pro se. Dkt. 14; dkt. 40.
an August 2018 status conference, Magistrate Judge Lynch
ordered Mr. Kumar to promptly submit a written settlement
proposal to Tata. Dkt. 45; dkt. 54-1 ¶ 4. A month later,
Mr. Kumar called Tata's counsel, asking what the case
“might settle for.” Dkt. 54-1 ¶ 5.
Tata's counsel reminded Mr. Kumar that he was required to
make the initial settlement offer. Id. Mr. Kumar,
however, never made a settlement demand. Id. ¶
before this conversation, Tata served interrogatories,
requests for production of documents, and a deposition notice
on Mr. Kumar. Dkt. 48-1; dkt. 48-2. Mr. Kumar did not respond
to the written discovery and never appeared for his
deposition. Dkt. 48 ¶¶ 2-3, 5; dkt. 54 at 2. Mr.
Kumar never communicated with Tata about rescheduling his
deposition and never requested an extension on the written
discovery. Dkt. 48 ¶ 6; dkt. 54 at 2.
then filed a motion to compel, dkt. 48; Mr. Kumar never
responded. Magistrate Judge Lynch granted the motion and
ordered Mr. Kumar to attend his deposition and respond to the
discovery. Dkt. 50. She also warned Mr. Kumar that
“if he fails to comply with this order and to
participate in discovery, he is subject to sanctions, which
may include the dismissal of his claims.”
Id. (bold in original).
that order, Mr. Kumar has not responded to any of Tata's
written discovery requests. Dkt. 54-1 ¶ 7. In addition,
Tata rescheduled Mr. Kumar's deposition and served him
with an amended deposition notice. Dkt. 54-2. He never
appeared for the rescheduled deposition. Dkt. 54-1 ¶ 7.
He has not spoken with Tata's attorneys about the
discovery or depositions. Id. ¶ 8.
filed a motion to dismiss Mr. Kumar's complaint because
of his failure to participate in discovery or comply with the
Court's orders. Dkt. 54. Mr. Kumar has not responded to
moved to dismiss Mr. Kumar's complaint under Rule 41(b)
and Rule 37(b)(2) of the Federal Rules of Civil Procedure.
Both rules support dismissing this case.
argues that this case should be dismissed under Rule 41(b)
because Mr. Kumar has violated deadlines set in Court orders
and in the Federal Rules of Civil Procedure. Under Rule
41(b), a court may dismiss a case if “the plaintiff
fails to prosecute or to comply with these rules or a court
order.” Fed.R.Civ.P. 41(b). Dismissal is a harsh
sanction, so it is appropriate only “when there is a
clear record of delay or contumacious conduct, or when other
less drastic sanctions have proven unavailing.”
Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir.
1983). Before dismissing under Rule 41(b), the Court should
1. the frequency and magnitude of the plaintiff's failure
to comply with deadlines for the ...