BALDWIN v. WITTLE et al

Filing 64

ORDER - This matter is before the Court on Defendants' Motions to Dismiss for failure to prosecute and for failure to comply with the Court's orders, [Filing No. 57 ; Filing No. 61 ; Filing No. 63 ], and the Court's Order to Show Cause, [Filing No. 62 ]. For the reasons described below, the Court GRANTS Defendants' Motions and concludes that Plaintiff Brandon Baldwin's Complaint must be dismissed with prejudice. Dismissal is a drastic sanction. But it is approp riate where, as here, the plaintiff fails to abide by the Court's orders and participate in the litigation. The Court therefore GRANTS Defendants' Motions to Dismiss, 57 , 61 , & 63 and DISMISSES Mr. Baldwin's Complaint WITH PRE JUDICE. The Court further RELINQUISHES supplemental jurisdiction over Menards' state-law claims and DISMISSES Menards' Crossclaim and Third-Party Complaint WITHOUT PREJUDICE. See 28 U.S.C. § 1367(c)(3). Final judgment will issue accordingly. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 1/25/2018. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

BRANDON L BALDWIN,

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Plaintiff,
vs.
MICHAEL WITTL,
et al.
Defendants.

No. 1:17-cv-00823-JMS-DML

ORDER
This matter is before the Court on Defendants’ Motions to Dismiss for failure to prosecute
and for failure to comply with the Court’s orders, [Filing No. 57; Filing No. 61; Filing No. 63],
and the Court’s Order to Show Cause, [Filing No. 62]. For the reasons described below, the Court
GRANTS Defendants’ Motions and concludes that Plaintiff Brandon Baldwin’s Complaint must
be dismissed with prejudice.
I.
BACKGROUND
On March 17, 2017, Mr. Baldwin filed his Complaint in this Court, alleging a variety of
claims stemming from an incident at a Menards store in which he was falsely accused of
shoplifting. [Filing No. 1.] Mr. Baldwin’s Complaint invoked this Court’s federal question
jurisdiction, alleging that Defendant Michael Wittl, the police officer who responded to the report
of shoplifting, violated the U.S. Constitution by using excessive force in detaining Mr. Baldwin.
[Filing No. 1 at 8-11]; see 28 U.S.C. § 1331. Mr. Baldwin also alleged state-law claims against
the remaining Defendants, Blue Line LP, Inc. (“Blue Line”), Benjamin Polley, and Menard, Inc.
(“Menards”), for their roles in causing Mr. Baldwin to be detained and for later talking about the

incident to other patrons. [Filing No. 1 at 6-8; Filing No. 1 at 11-12.] These claims invoke the
Court’s supplemental jurisdiction. See 28 U.S.C. § 1367(a). Menards has filed a Crossclaim
against Blue Line, [Filing No. 15 at 9-10], and a Third-Party Complaint against Scottsdale
Insurance Company, [Filing No. 15 at 11-12], also invoking supplemental jurisdiction.1
The Case Management Plan entered in this matter required Mr. Baldwin to file his
preliminary witness and exhibit lists on or before August 17, 2017. [Filing No. 36 at 4.] Mr.
Baldwin failed to file the required witness and exhibit lists.
On September 15, 2017, Mr. Wittl moved to compel Mr. Baldwin to respond to
interrogatories and requests for production. [Filing No. 51.] Mr. Wittl stated that he had served
the discovery requests on July 18, 2017 and that Mr. Baldwin’s responses were due no later than
August 28, 2017 by agreement of the parties. [Filing No. 51 at 2.] Mr. Baldwin did not respond
to Mr. Wittl’s Motion to Compel, and on October 16, 2017, the Court granted Mr. Wittl’s Motion.
[Filing No. 54.] The Court ordered Mr. Baldwin to serve his overdue discovery on or before
October 30, 2017. [Filing No. 54 at 2.] On November 3, 2017, Mr. Wittl filed a Notice of
Plaintiff’s Non-Compliance, notifying the Court that Mr. Baldwin had not served his overdue
discovery as required by the Court’s Order. [Filing No. 55.]
On December 5, 2017, Mr. Wittl filed a Motion to Dismiss, arguing that the Court should
dismiss Mr. Baldwin’s Complaint for failure to comply with the Court’s Order compelling
discovery and for failure to prosecute. [Filing No. 57.] The other Defendants filed motions to join
in Mr. Wittl’s Motion to Dismiss on December 22, 2017, [Filing No. 57], and on January 8, 2018,

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Menards’ Crossclaim and Third-Party Complaint do not allege facts that would establish diversity
and otherwise fail to invoke an independent basis for the Court’s jurisdiction, leading the Court to
conclude that Menards has relied upon the Court’s supplemental jurisdiction for its claims.
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[Filing No. 63]. Defendants all claim that they have been prejudiced by Mr. Baldwin’s failure to
participate in discovery. Mr. Baldwin has not responded to any of these Motions.
On December 21, 2017, the Magistrate Judge held a telephonic status conference with the
parties. [See Filnig No. 59; Filing No. 62.] Counsel for Mr. Baldwin failed to appear. [Filing No.
62 at 1.] On December 26, 2017, the Magistrate Judge ordered counsel for Mr. Baldwin to show
cause within seven days why he should not be sanctioned for failing to appear for the status
conference. [Filing No. 62 at 1.] Mr. Baldwin’s counsel did not respond to the Magistrate Judge’s
Order to Show Cause. Mr. Baldwin’s last action in this lawsuit occurred on July 24, 2017, when
he filed a Notice of Service of Initial Disclosures. [Filing No. 40.]
II.
DISCUSSION
The Federal Rules of Civil Procedure permit the sanction of dismissal for failure to comply
with court orders. Rule 37(b)(2) provides that the Court may issue a variety of sanctions for failure
to “obey an order to provide or permit discovery,” including “dismissing the action or proceeding
in whole.” Fed. R. Civ. P. 3(b)(2)(A). Rule 41(b) explains that “a defendant may move to dismiss
the action or any claim against it” where a “plaintiff fails to prosecute or to comply with these
rules or a court order.” Fed. R. Civ. P. 41(b).
The decision to dismiss a lawsuit, either as a sanction for failure to comply with discovery
orders or for failure to prosecute, is committed to the sound discretion of the District Court.
Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 782 (7th Cir. 2016); McInnis v. Duncan, 697 F.3d
661, 664 (7th Cir. 2012) (per curiam). Dismissal is regarded as drastic sanction, appropriate when
“there is a clear record of delay or contumacious conduct,” such as a pattern of failure to comply
with Court orders. McInnis, 697 F.3d at 664 (quoting Kasalo v. Harris & Harris, Ltd., 656 F.3d
557, 561 (7th Cir. 2011)). While the Court should “consider less severe sanctions before

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dismissing for failure to prosecute,” there is no requirement of “progressive discipline” or
“‘warning shot[s]’ in the form of less severe sanctions.” Id. at 665 (collecting cases). Dismissal
for lack of prosecution generally requires forewarning, which may be provided by an opposing
party’s motion to dismiss. Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 666 (7th Cir. 2006).
That a plaintiff’s attorney, rather than the client, may be responsible for the conduct leading
to dismissal does not change the analysis. “The clients are principals, the attorney is an agent, and
under the law of agency the principal is bound by his chosen agent’s deeds.” United States v. 7108
W. Grand Ave., Chi., Ill., 15 F.3d 632, 634 (7th Cir. 1994). The attorney’s “[m]alpractice, gross
or otherwise, may be a good reason to recover from the lawyer but does not justify prolonging
litigation against the original adversary.” Id. at 633.
The record here evinces a long pattern of failure to comply with the Court’s orders. Mr.
Baldwin last filed a document in this matter on July 24, 2017. [Filing No. 40.] Since that time,
Mr. Baldwin has failed to comply with the Court’s Order compelling discovery, [Filing No. 54],
failed to respond to three Motions to Dismiss, [Filing No. 57; Filing No. 61; Filing No. 63], failed
to appear for a telephonic status conference, [Filing No. 62], and failed to respond to the Court’s
Order to Show Cause, [Filing No. 62]. Defendants’ Motions to Dismiss, the first of which was
filed on December 5, 2017, explicitly put Mr. Baldwin on notice that they would seek dismissal as
a sanction for failure to prosecute and to comply with Court orders. [Filing No. 57; Filing No. 61;
Filing No. 63.]
Under these circumstances, a sanction short of dismissal would not suffice because, as
shown by the record in this matter, neither the Court’s orders nor the parties’ motions have
succeeded in getting Mr. Baldwin’s attention. In short, Mr. Baldwin has had multiple opportunities
to participate in this litigation and has failed to do so. The Court has no reason to believe that any

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other sanction would trigger a different response. Finally, the fact that Mr. Baldwin’s failure to
participate may be due to the inattentiveness of counsel “does not justify prolonging [this]
litigation,” as Mr. Baldwin is bound by the actions (or inaction) of his counsel. 7108 W. Grand
Ave., 15 F.3d at 633. Therefore, the Court concludes that dismissal with prejudice is appropriate
under Rule 37(b)(2)(A) and Rule 41(b).
III.
CONCLUSION
Dismissal is a drastic sanction. But it is appropriate where, as here, the plaintiff fails to
abide by the Court’s orders and participate in the litigation. The Court therefore GRANTS
Defendants’ Motions to Dismiss, [57], [61], & [63] and DISMISSES Mr. Baldwin’s Complaint
WITH PREJUDICE. The Court further RELINQUISHES supplemental jurisdiction over
Menards’ state-law claims and DISMISSES Menards’ Crossclaim and Third-Party Complaint
WITHOUT PREJUDICE. See 28 U.S.C. § 1367(c)(3).
Final judgment will issue accordingly.

Date: 1/25/2018

Distribution via ECF only to all counsel of record.

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