Wenskunas v. CFT-III LLC

Filing 3

OPINION: Pro Se Appellant John Weskunas' appeal is DISMISSED. This case is CLOSED. See written Opinion. Entered by Judge Sue E. Myerscough on 8/1/2011. (MJ, ilcd)

E-FILED

Monday, 01 August, 2011 03:32:43 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
JOHN WESKUNAS,

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Appellant,
v.
CFT-III, LLC,
Appellee.

11-3177

OPINION
SUE E. MYERSCOUGH, U.S. District Judge
This Court now considers pro se Appellant John Weskunas’ appeal
of an Order from the U.S. Bankruptcy Court for the Central District of
Illinois to this Court. See d/e 1. Pursuant to Federal Rule of Civil
Procedure 41(b), the appeal will be DISMISSED FOR WANT OF
PROSECUTION.
FACTS
Appellant filed his appeal on June 23, 2011. See d/e 1. This
Court’s briefing schedule for the appeal required Appellant to file a brief

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by July 18, 2011. See d/e dated June 29, 2011. Appellant did not file a
brief by that date. On July 31, 2011, Appellee CFT-III LLC filed a 2page long Appellee’s Brief. The Appellee’s Brief stated that Appellant
“failed to file a brief in this cause by the deadline established by the
Court . . . .” See d/e 2 at 1.
JURISDICTION
This Court has jurisdiction to hear an appeal from the U.S.
Bankruptcy Court. See 28 U.S.C. § 158(a).
ANALYSIS
In the federal courts, parties’ pleadings, motions, and supporting
memoranda are measured by their content, not their title. Cf. Bartholet
v. Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992); Guyton v.
United States, 453 F.3d 425, 427 (7th Cir. 2006). Applying this
principle here, it appears that Appellee—by reciting the Appellant’s
“fail[ure] to file a brief”—is seeking involuntary dismissal of Appellant’s
appeal under Federal Rule of Civil Procedure 41(b).
Involuntary dismissal under Rule 41(b) is appropriate when a party

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moves to dismiss another party’s claim for want of prosecution. Id.
Involuntary dismissal can also be ordered sua sponte by a court. See
Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 138889, 8 L.Ed.2d 734 (1962) (holding that a sua sponte Rule 41(b)
dismissal is proper to prevent undue delays in the disposition of pending
cases and to avoid congestion on a court’s calendar).
Appellee’s Brief can be construed as a Rule 41(b) motion.
Furthermore, sua sponte dismissal is proper under Rule 41(b) because
Appellant has not filed a brief in accordance with the briefing schedule.
CONCLUSION
THEREFORE, pro se Appellant John Weskunas’ appeal is
DISMISSED. This case is CLOSED.
ENTER: August 1, 2011
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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