Swain v. Godinez et al

Filing 46

ORDER: This matter comes before the Court for case management. Pursuant to the Court's prior 43 Notice, the Court DISMISSES without prejudice plaintiff's claims against defendant Unknown and Unnamed Officers for failure to prosecute. Signed by Judge David R. Herndon on 10/13/2017. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEANNA SWAIN,

as Executor of the Estate
of Dustin Walker, Deceased,
Plaintiff,
v.

Case No. 16-CV-1183-DRH-SCW

SALVADOR GODINEZ, et al,
Defendants.
ORDER
HERNDON, District Judge:
This matter comes before the Court for case management. On September
20, 2017, the Court entered a Notice of Impending Dismissal for failure to
effectuate service upon defendant Unknown and Unnamed Officers (Doc. 43). The
Court’s notice directed plaintiff to effect service in this case on defendant
Unknown and Unnamed Officers no later than October 11, 2017, or face
dismissal for failure to prosecute (Doc. 43). As of this date, no action has been
taken. As a result of plaintiff’s failure to effectuate service upon defendant
Unknown and Unnamed Officers, as required by FEDERAL RULE

OF

CIVIL

PROCEDURE 4(m), the Court finds that dismissal is warranted. The Seventh Circuit
Court of Appeals has found:
A party's willful failure to prosecute an action can be an appropriate
basis for dismissal. See, e.g., Bolt v. Loy, 227 F.3d 854, 856 (7th
Cir.2000); Fed. Election Comm'n v. Al Salvi for Senate Comm., 205
F.3d1015, 1018 (7th Cir. 2000); Williams v. Chi. Bd. of Educ., 155
F.3d853, 857 (7th Cir. 1998). “Once a party invokes the judicial
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system by filing a lawsuit, it must abide by the rules of the court; a
party cannot decide for itself when it feels like pressing its action and
when it feels like taking a break because [t]rial judges have a
responsibility to litigants to keep their court calendars as current as
humanly possible.” GCIU Employer Ret. Fund v. Chi. Tribune Co., 8
F.3d 1195, 1198B99 (7th Cir. 1993)(quoting Kagan v. Caterpillar
Tractor Co., 795 F.2d 601, 608 (7th Cir. 1986)). Factors relevant to a
court's decision to dismiss for failure to prosecute include the
seriousness of the misconduct, the potential for prejudice to the
defendant, and the possible merit of the suit. Bolt, 227 F.3d at 856;
Kovilic Constr. Co. v. Missbrenner, 106 F.3d 768, 769B70 (7th Cir.
1997).

In re Nora, 417 Fed.Appx. 573, 575 (7th Cir. 2011).
Accordingly, the Court DISMISSES without prejudice plaintiff’s claims
against defendant Unknown and Unnamed Officers for failure to prosecute.
IT IS SO ORDERED.

Digitally signed by
Judge David R. Herndon
Date: 2017.10.13
10:54:12 -05'00'
United States District Judge

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