Marshall et al v. JP Morgan Chase Bank et al
OPINION AND ORDER: GRANTING 114 Motion to Dismiss for Lack of Prosecution as to plaintiff Wiley's claims. Signed by Senior Judge James T Moody on 3/30/15. (jld)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
J. JOHN MARSHALL, ESTATE OF
MARJORIE MARSHALL, and
JP MORGAN CHASE BANK, AMERIPRISE )
BANK, FIDELITY NATIONAL FIELD
SERVICES, INC., JAKK MORTGAGE
COMPANY, LPS, FIELD SERVICES, ROBERT )
HASBERGER , CITY OF ELKHART, CHIEF
DALE PFLIBSEN, CPL. MICHAEL
WINDMILLER, PTLMN. BRANDON
ROUNDTREE, SGT. TRAVIS SNIDER,
PTLMN. MICHAEL JANIS,
No. 3:11 CV 332
OPINION AND ORDER
This matter is before the court on defendants the City of Elkhart, Chief Dale
Pflibsen, Cpl. Michael Windmiller, Ptlmn. Brandon Roundtree, Sgt. Travis Snider, and
Ptlmn. Michael Janis’s motion, on their own behalf, and on behalf of their co-defendants, JP
Morgan Chase, JAKK Mortgage Company, and Robert Hashberger (collectively
“defendants”), to dismiss all of plaintiff Kimberly Wiley’s claims against all defendants for
failure to prosecute. (DE # 114.) Plaintiff Wiley has not responded to this motion, and the
time to do so has passed. For the following reasons, defendants’ motion is granted.
Defendants move to dismiss Wiley’s claims for failure to prosecute under FEDERAL
RULE OF CIVIL PROCEDURE 41(b), which states, in part: “If 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.” Defendants argue that Wiley has failed to prosecute this action by
refusing to sit for her deposition, despite multiple attempts by defendants to schedule
Wiley’s deposition through her attorney and despite serving multiple notices of deposition
for Wiley. (DE # 114 at 1-2.)
As Wiley has not responded to defendants’ motion, she has failed to provide the
court with any explanation for why she refused to sit for her deposition. The evidence
attached to defendants’ motion, however, reveals that Wiley’s attorney lost contact with
her at some point in the litigation and, apparently, was never able to locate her again. (Id.
at 2, 4.) The evidence supporting defendants’ motion, however, shows that defendants
attempted to schedule Wiley’s deposition with her attorney several times, and also served
several notices of deposition for Wiley. (DE # 114-1.)
“Dismissal for failure to prosecute ‘is an extraordinarily harsh sanction that should
be used only in extreme situations, when there is a clear record of delay or contumacious
conduct, or when other less drastic sanctions have proven unavailing.’” Gabriel v. Hamlin,
514 F.3d 734, 736-37 (7th Cir. 2008) (quoting Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir.
2000)). In most cases, the district court should warn the plaintiff that such a sanction may
be imposed. Id. at 736-37; see also Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720, 725 (7th
Cir. 2004) (“We have repeatedly held that a district court ordinarily may not dismiss a case
for want of prosecution without first providing an explicit warning to the plaintiff.”).
Given the conduct of plaintiff Wiley, this case presents one of those “extreme
situations” where dismissal is appropriate. Gabriel, 514 F.3d at 736-37. Defendants
attempted to schedule Wiley’s deposition for almost a year (DE # 114-1), to no avail. Wiley
provides no explanation for her failure to sit for her deposition, and her attorney cannot
locate her. This conduct justifies dismissal.
The court also finds that proper warning has been given to Wiley. See Gabriel, 514
F.3d at 736;-37 Sharif, 376 F.3d at 725. “‘Due warning’ need not be repeated warnings and
need not be formalized in a rule to show cause . . . . But there should be an explicit warning
in every case.” Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993). In this case, plaintiff
Wiley has received “due warning” multiple times. (DE # 70 at 7; DE # 71 at 4-5; DE # 79 at
2-3.) Several defendants previously moved to dismiss this case due to plaintiffs’ failure to
prosecute it (DE # 57), and although the court ultimately denied the motion (DE # 70;
DE # 79), it warned the plaintiffs that further delays could result in dismissal of their suit.
(DE # 70; DE # 79.) Thus, plaintiff Wiley was well aware that further failure to prosecute
could result in dismissal of her suit.
In sum, the court concludes that plaintiff Wiley’s claims against all defendants must
be dismissed due to her failure to prosecute this action. Jenkins v. Miles, 553 F. App’x 638,
640-41 (7th Cir. 2014) (upholding district court’s dismissal of plaintiff’s case for failure to
prosecute after plaintiff refused to sit for deposition). Defendants’ motion to dismiss
plaintiff Wiley’s claims is GRANTED (DE # 114), and Wiley’s claims against all
defendants are hereby dismissed.
Date: March 30, 2015
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT
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