Harrison v. Jaques et al

Filing 64

OPINION AND ORDER re 61 MOTION to Dismiss for Lack of Prosecution by Defendants David Borgetti, Griffith Police Department, Jason Jacques, Greg Mance, Tony Morris, Town of Griffith; 62 NOTICE of Service of Motion to Dismiss on Plaintiff and Reque st for Ruling on Defendants' Motion to Dismiss by David Borgetti, Griffith Police Department, Jason Jacques, Greg Mance, Tony Morris, Town of Griffith. The 61 MOTION is TAKEN UNDER ADVISEMENT and the Motion contained within 62 NOTICE is GRAN TED. Plaintiff Gary Joe Harrison ORDERED to file by 7/29/2016 a Notice providing his current address and telephone number as well as a Response, if any, to the Motion to Dismiss. Plaintiff WARNED that if he fails to comply with this Opinion and Order , the Court is likely to grant the Motion to Dismiss. Clerk DIRECTED to serve by mail this Opinion and Order along with a copy of the Court's May 17, 2016 Order (DE 58 ) and a copy of Defendant's Verified Motion to Dismiss (DE 61 ) on Plaintiff at the addresses outlined in Order. Signed by Magistrate Judge Paul R Cherry on 7/13/16. (cc: Gary Joe Harrison (at the 3 addresses contained in Order)). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GARY JOE HARRISON,
Plaintiff,
v.
TOWN OF GRIFFITH, GRIFFITH
POLICE DEPARTMENT, JASON
JAQUES, TONY MORRIS, GREG
MANCE, and DAVID BORGETTI,
Defendants.

)
)
)
)
)
)
)
)
)
)

CAUSE NO.: 2:15-CV-37-PRC

OPINION AND ORDER
This matter is before the Court on Defendants’ Verified Motion to Dismiss [DE 61], filed
by Defendants Town of Griffith, Griffith Police Department, Jason Jaques, Tony Morris, Greg
Mance, and David Borgetti on June 24, 2016. Plaintiff Gary Joe Harrison has not filed a response,
and the time to do so has passed.
This matter is also before the Court on a “Notice of Service of Motion to Dismiss on Plaintiff
and Request for Ruling on Defendants’ Motion to Dismiss” [DE 62], filed by Defendants on July
11, 2016. Therein, Defendants ask the Court to rule on the Motion to Dismiss as Plaintiff did not file
a response by the deadline, which Defendants contend was July 8, 2016. Defendants also attached
proof that Defendants’ attempt to serve Plaintiff with the Motion to Dismiss at his last known
address was returned as undeliverable. Defendants are correct that Northern District of Indiana Local
Rule 7-1(d)(2)(A) provides that a response brief is due within fourteen days after the motion is
served. Fourteen days after service of the Motion to Dismiss was July 8, 2016. However, pursuant
to Federal Rule of Civil Procedure 6(d), three extra days are added to that deadline, which makes
the deadline July 11, 2016. Regardless, the response deadline has now passed, and the Motion to
Dismiss is ripe for ruling.

Plaintiff filed a Complaint, pro se, with this Court on January 30, 2015. Counsel later entered
an appearance on behalf of Plaintiff, and an Amended Complaint was filed on July 2, 2015.
Following the Rule 16(b) scheduling conference, Defendants issued written discovery requests to
the Plaintiff on November 12, 2015, which were not timely responded to, prompting Defendants to
file a Motion to Compel on February 16, 2016. On March 7, 2016, the Court issued an Order
requiring Plaintiff to respond to all discovery requests by April 6, 2016. Plaintiff provided responses
but did not fully respond to Interrogatory 12 due to a typographical error in the request, which,
Defendants admit, made the request confusing. On March 25, 2016, counsel for Defendants sent
Plaintiff’s counsel correspondence regarding the error with a clean version of Interrogatory 12 and
asked for a timely response. Counsel for Defendants spoke telephonically with counsel for Plaintiff
several times regarding the clarified question and the need for an answer. Counsel for Plaintiff then
informed counsel for Defendants that he intended to withdraw from the case.
On May 17, 2016, the Court granted Plaintiff’s attorney’s motion to withdraw his
appearance. In the motion, counsel for Plaintiff provided the Court with Plaintiff’s last known
address. In the May 17, 2016 Order, the Court set this matter for an in-person status conference on
June 23, 2016, ordering Plaintiff to personally appear. However, all correspondence sent to Plaintiff
at that last known address has been returned as undeliverable, including the Order granting the
motion to withdraw appearance and ordering Plaintiff to appear at the hearing.
Plaintiff did not appear at the June 23, 2016 hearing. The Court attempted to contact Plaintiff
at his phone number of record but was only able to leave a voice mail message. Plaintiff did not
return the Court’s phone call.
Thus, either Plaintiff has failed to comply with the Court’s Order of May 17, 2016, or failed
to keep the Court informed of his current address, as required.
2

Defendants ask the Court to dismiss this case pursuant to Federal Rule of Civil Procedure
41(b) for failure to prosecute. Rule 41(b) provides that, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may move to dismiss the action or any claim
against it.” Fed. R. Civ. P. 41(b). Under Rule 41(b), a court should only dismiss a case when “there
is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven
unavailing.” Brown v. Columbia Sussex Corp., 664 F.3d 182, 190 (7th Cir. 2011) (citing Maynard
v. Nygren, 332 F.3d 462, 467 (7th Cir. 2000)); see also Salata v. Weyerhaeuser Co., 757 F.3d 695,
699 (7th Cir. 2014). In most cases, the district court should warn the plaintiff that such a sanction
may be imposed. See Williams v. Chi. Bd. of Educ., 155 F.3d 853, 857 (7 th Cir. 1998); see also Ball
v. City of Chi., 2 F.3d 752, 759-60 (7th Cir. 1993) (indicating that “[t]here should be an explicit
warning in every case”). In considering such a dismissal, a district court should consider numerous
factors, including the frequency and magnitude of the plaintiff’s conduct, the prejudice to the
defendant, the disruption to the orderly administration of the court’s calendar, and the merits of the
underlying litigation. See Williams, 155 F.3d at 857; Bolt v. Loy , 227 F.3d 854, 856 (7th Cir. 2000).
Although Plaintiff’s delays have inconvenienced Defendants and it appears that Plaintiff has
displayed contumacious conduct in failing to appear and/or failing to keep the Court apprised of his
mailing address, in light of the returned mail, the record does not yet warrant an order of dismissal.
Nor has the Court warned Plaintiff that his case may be dismissed for his failure to prosecute this
litigation.
Accordingly, the Court hereby GRANTS the motion contained within the “Notice of Service
of Motion to Dismiss on Plaintiff and Request for Ruling on Defendants’ Motion to Dismiss” [DE
62] and TAKES UNDER ADVISEMENT Defendants’ Verified Motion to Dismiss [DE 61].
3

The Court ORDERS Plaintiff to FILE with the Court on or before July 29, 2016, a notice
providing his current address and phone number as well as a response, if any, to the Motion to
Dismiss. The Court WARNS Plaintiff that, if he fails to comply with this Opinion and Order, the
Court is likely to grant the Motion to Dismiss.
The Court DIRECTS the Clerk of Court to serve by mail this Opinion and Order along with
a copy of the Court’s May 17, 2016 Order (docket entry 58) and a copy of Defendants’ Verified
Motion to Dismiss (docket entry 61) on Plaintiff at each of the following addresses, all of which
have been used by Plaintiff during this litigation or provided to the Court as Plaintiff’s address:
Gary Joe Harrison
436 Hemlock Avenue
Gary, IN 46403
Gary Joe Harrison
3847 Roche St.
Hobart, IN 46342
Gary Joe Harrison
1831 N. Mansards Blvd., Apt. 1G
Griffith, IN 46319
SO ORDERED this 13th day of July, 2016.
/s Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

cc:

Pro se Plaintiff Gary Joe Harrison at each of the addresses listed above

4