Johnson v. Boilermaker Local # 374

Filing 36

OPINION AND ORDER: The 33 Motion to Dismiss Case filed by the plaintiff REMAINS UNDER ADVISEMENT. Plaintiff is ORDERED to inform the Court, in writing by 7/18/2017, whether he wishes to 1) withdraw is motion to dismiss or 2) proceed with voluntarily dismissing his case. Plaintiff is CAUTIONED that if he does not respond by that deadline, this case will be dismissed with prejudice without further warning. Signed by Judge Rudy Lozano on 6/27/17. (Copy mailed to pro se party)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KENNETH JOHNSON,

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Plaintiff,
vs.
BOILERMAKERS LOCAL #374,
Defendant.

NO. 2:15-CV-54

OPINION AND ORDER
This matter is before the Court on the Motion to Dismiss Case
filed by the plaintiff, Kenneth Johnson, on November 16, 2016. (DE
#33.)

For the reasons set forth below, the motion REMAINS UNDER

ADVISEMENT.

The plaintiff, Kenneth Johnson, is ORDERED to inform

the Court, in writing by July 18, 2017, whether he wishes to: (1)
withdraw his motion to dismiss, in which instance he must be
prepared to immediately and actively prosecute his case; or (2)
proceed with voluntarily dismissing his case, knowing that such
dismissal will be with prejudice.

The plaintiff, Kenneth Johnson,

is CAUTIONED that if he does not respond by the deadline, this case
will be dismissed with prejudice without further warning.

BACKGROUND
The plaintiff, Kenneth Johnson (“Plaintiff”), filed a pro se
employment

discrimination

complaint

against

the

defendant,

Boilermakers Local #374 (“Defendant”), on February 2, 2015; the
complaint was assigned cause number 2:15-CV-54.

On January 15,

2016, Plaintiff filed another complaint against Defendant which was
assigned cause number 2:16-CV-19.

Both complaints were brought

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
section

2000e-5,

as

amended,

and

The

Employment Act, 29 U.S.C. section 621.

Age

Discrimination

in

Plaintiff attached a

Dismissal and Notice of Rights (“Notice”) from the Equal Employment
Opportunity Commission (“EEOC”) to each complaint; the first Notice
was issued on November 18, 2014, and the second Notice was issued
on December 10, 2015.

Both Notices state:

Title VII . . . [and] the Age Discrimination
in Employment Act: This will be the only
notice of dismissal and of your right to sue
that we will send you. You may file a lawsuit
against the respondent(s) under federal law
based on this charge in federal or state
court. Your lawsuit must be filed WITHIN 90
DAYS of your receipt of this notice; or your
right to sue based on this charge will be
lost.
(Cause no. 2:15-CV-54, DE #1, p. 5; Cause No. 2:16-CV-19, DE #1, p.
5.)

On March 16, 2016, Magistrate Judge John E. Martin (“Judge

Martin”) ordered the consolidation of the two cause numbers and
directed that all future filings be made in cause number 2:15-CV-54
only.
On September 16, 2016, Defendant filed a motion entitled
“Defendant’s

Verified

Fed.

R.

Civ.

P.

Rule

37(a)(3)(B)

and

(b)(2)(A) Motion to Compel Plaintiff Kenneth Johnson to Produce
2

Initial Disclosures and to Impose Sanctions on the Plaintiff or to
Dismiss the Case for Want of Prosecution.” In it, Defendant argued
that the Court should compel Plaintiff to produce his initial
disclosures and impose sanctions on him for not doing so sooner;
alternatively, Defendant asked for dismissal of the lawsuit with
prejudice for failure to comply with Court ordered discovery.
On November 9, 2016, Judge Martin held a Show Cause Hearing on
the question of whether Plaintiff should be sanctioned for his
failure to comply with the Court’s discovery schedule. In an order
memorializing the details of the hearing, Judge Martin indicated
that he had found cause shown, so he had imposed no sanctions.

At

Plaintiff’s request, Judge Martin granted Plaintiff leave to file
a motion to dismiss the case without prejudice, on or before
November 17, 2016, and ordered Defendant to respond to it on or
before November 30, 2016. Additionally, because Defendant objected
to dismissal without prejudice but had failed to follow Local Rule
7-1(a) when filing its previous motion, Judge Martin ordered
Defendant to re-file its motion to dismiss with prejudice as a
separate motion by November 17, 2016, and granted Plaintiff until
November 30, 2016, to respond.
On November 16, 2016, Plaintiff filed the instant motion to
dismiss.

In it, he requests that the case be dismissed without

prejudice because he does not have the funds to retain legal
counsel, because if or when he does retain counsel, such counsel

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will need time to review and prepare the case, and because he needs
additional time to find better employment.

Defendant filed a

response on November 30, 2016, arguing that the motion should be
denied because “[i]t will serve no useful purpose to permit
Plaintiff to dismiss his case without prejudice because of the
requirements of Title VII and its 90-day period for filing a
lawsuit after the receipt of the Notice of Suit Rights.”

(DE #34,

p. 3.)

Defendant asks the Court to deny Plaintiff’s motion to

dismiss

without

prejudice.

prejudice

and

instead

dismiss

the

case

with

Plaintiff did not file a reply.

Despite being ordered by Judge Martin to re-file its own
motion to dismiss with prejudice as a separate motion, Defendant
chose to simply “incorporate” the motion into its response brief
via a footnote.

(See DE #34, p. 2, n. 4.)

ANALYSIS
Federal Rule of Civil Procedure 41(a)(2) provides that an
“action may be dismissed at the plaintiff’s request only by court
order, on terms that the court considers proper.”
41(a)(2).

Fed. R. Civ. P.

Unless otherwise stated, such dismissal is without

prejudice. Id. The Seventh Circuit has delineated several factors
for a district court to consider when determining whether a
plaintiff’s

motion

for

voluntary

dismissal

should

be

denied,

including “the defendant’s effort and expense of preparation for

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trial, excessive delay and lack of diligence on the part of the
plaintiff in prosecuting the action, insufficient explanation for
the need to take a dismissal, and the fact that a motion for
summary judgment has been filed by the defendant.”
Co., 409 F.2d 331, 334 (7th Cir. 1969).

Pace v. S. Exp.

Rather than being

mandatory, however, the factors are simply a guide for the trial
court judge, with whom discretion ultimately rests, to consider.
Tyco Laboratories, Inc. v. Koppers Co., Inc., 627 F.2d 54, 56 (7th
Cir. 1980).

“In exercising its discretion the court follows the

traditional principle that dismissal should be allowed unless the
defendant will suffer some plain legal prejudice other than the
mere prospect of a second lawsuit.”

Stern v. Barnett, 452 F.2d

211, 213 (7th Cir. 1971) (citation omitted).
Looking at the instant case, it would appear that the factors
weigh in favor of dismissal.

The action has not progressed beyond

the initial disclosure phase of discovery, so it is highly unlikely
that Defendant has expended significant effort and expense in
preparation for trial.
has been filed.

Similarly, no motion for summary judgment

While it is true that Plaintiff has been less than

diligent in prosecuting his case, Judge Martin found good cause
shown for Plaintiff’s failure to comply with the Court’s scheduling
orders and declined to impose sanctions. And, although Plaintiff’s
explanation for desiring dismissal is not lengthy, the fact that he

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wishes to hire an attorney to help with his case but currently
lacks the financial means to do so is persuasive.
However, that said, Defendant is correct in pointing out that
the ninety day filing requirement in employment discrimination
cases presents a problem. See 42 U.S.C. § 2000e–5(f)(1). As noted
by the Seventh Circuit:
When a federal civil action is dismissed
without prejudice, the statute of limitations
runs continuously.
It is not reset by the
filing and dismissal as it is in some states
(including Illinois), which allow litigants a
period to re-file after a dismissal.
In
federal practice, by contrast, when a suit is
dismissed, the tolling effect of the filing of
the suit is wiped out and the statute of
limitations is deemed to have continued
running from whenever the cause of action
accrued, without interruption by that filing.
In other words, a suit dismissed without
prejudice
is
treated
for
statute
of
limitations purposes as if it had never been
filed.
Lee v. Cook Cnty., Ill., 635 F.3d 969, 971-72 (7th Cir. 2011)
(internal quotation marks and citation omitted).

Because statutes

of limitations confer rights on defendants, district court judges
do not have the authority to extend such limitations periods either
directly or indirectly by providing additional time to re-file a
dismissed suit.

Id. at 972.

Here, the ninety day filing requirements triggered by the
Notices dated November 18, 2014, and December 10, 2015, has long
since passed. Should this suit be dismissed without prejudice, the
reality is that it will be far too late for Plaintiff to file a new
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lawsuit at this point unless he can somehow persuasively argue that
the doctrine of equitable tolling should apply, which is highly
unlikely in these circumstances.

As such, the Court agrees with

Defendant that a dismissal with prejudice is more appropriate than
a dismissal without prejudice in this particular instance.
Although not mentioned by Defendant, “a plaintiff who moves
for dismissal without prejudice under Rule 41(a)(2) must be given
a reasonable opportunity to withdraw his motion in the event the
district court grants the motion but only with prejudice.”
v. Winston & Strawn, 19 F.3d 300, 305 (7th Cir. 1994).

Marlow

Thus, the

Court will allow Plaintiff to move to withdraw his motion should he
so choose.

If Plaintiff does wish to proceed with this case, he

must be fully prepared to engage in active prosecution of it; any
additional delays or missed deadlines will be looked upon with
extreme disfavor.

CONCLUSION
For the reasons set forth above, the motion REMAINS UNDER
ADVISEMENT.

Plaintiff is ORDERED to inform the Court, in writing

by July 18, 2017, whether he wishes to: (1) withdraw his motion to
dismiss, in which instance he must be prepared to immediately and
actively prosecute his case; or (2) proceed with voluntarily
dismissing his case, knowing that such dismissal will be with
prejudice.

Plaintiff is CAUTIONED that if he does not respond by
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the deadline, this case will be dismissed with prejudice without
further warning.

DATED: June 27, 2017

/s/RUDY LOZANO, Judge
United States District Court

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