ESTATE OF DOUGLAS ALMOND WIGGINGTON v. SILVER et al

Filing 55

ORDER - Dismissal is a drastic sanction. But it is appropriate where, as here, the plaintiff fails to participate in the litigation. The Court, therefore, GRANTS Defendants' Motions to Dismiss, 50 & 51 and DISMISSES the Estate's Complaint WITH PREJUDICE. Final judgment will issue accordingly. (See Order). Signed by Judge Jane Magnus-Stinson on 3/12/2019. (JDH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ESTATE OF DOUGLAS ALMOND
WIGGINGTON,
Plaintiff,
vs.
POLICE OFFICER DILLON SILVER,
et al.
Defendants.

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No. 1:18-cv-01138-JMS-DML

ORDER
The Estate of Douglas Almond Wiggington brought this lawsuit after Mr. Wiggington died
following an encounter with the police in which he was allegedly Tased. Pending before the Court
are two motions to dismiss for failure to prosecute. One is filed by Defendant Axon Enterprise,
Inc. (“Axon”), the manufacturer of the Taser. [Filing No. 50.] The other is filed collectively by
the City of Greenfield; its City Council; and the police chief, Officer Dillon Silver, and Sergeant
Rodney Vawter of the Greenfield Police Department (collectively, the “Greenfield Defendants”).
[Filing No. 51.] For the reasons described below, the Court GRANTS Defendants’ Motions and
concludes that the Estate’s Complaint must be dismissed with prejudice.
I.
BACKGROUND
On April 13, 2018, the Estate filed its Complaint in this Court, alleging a variety of
constitutional and state law claims stemming from Mr. Wiggington’s encounter with the police in
Greenfield, Indiana, which allegedly resulted in his death from being Tased. [Filing No. 1.] On
June 14, 2018, the Magistrate Judge entered a Case Management Plan (“CMP”) setting forth
various deadlines to facilitate the orderly development of this matter. [Filing No. 30.] Since that

time, however, the Estate has failed to comply with many of the CMP deadlines and discovery
obligations.
A.

Case Management Plan Obligations

The CMP in this matter required the Estate to serve their initial disclosures, preliminary
witness and exhibit lists, and settlement demand by their respective deadlines of August 13, August
20, and September 13, 2018. [Filing No. 30 at 4.] The Estate failed to comply with these deadlines.
On October 2, 2018, the Magistrate Judge directed the Estate to serve the untimely filings by
October 12, 2018. [Filing No. 44.] The Estate ultimately partially complied with this extended
deadline, as it served its initial disclosures and witness and exhibit lists on October 12, 2018.
[Filing No. 45; Filing No. 46; Filing No. 47.] The Estate failed, however, to serve its settlement
demand and statement of special damages.
B.

Discovery Obligations

The Estate likewise failed to comply with its discovery obligations throughout the
pendency of this case. On June 22, 2018, the Greenfield Defendants served the Estate with
interrogatories and requests for production. [Filing No. 51-4 at 1.] Despite receiving an extension
to September 7, 2018, the Estate failed to serve the required discovery responses. [Filing No. 33.]
A further email request for discovery responses sent on September 23, 2018 likewise went
unanswered. [Filing No. 51-1.]
On July 6, 2018, Axon served the Estate with interrogatories and requests for production.
[See Filing No. 38 at 2.] On August 20, 2018, the Court denied the Estate’s motion to extend the
response deadline because the motion to extend was filed after the deadline had expired. [Filing
No. 39.]

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On October 5, 2018, following a status conference with the parties, the Magistrate Judge
directed the Estate to “promptly confer with defense counsel regarding responses to outstanding
discovery responses.” [Filing No. 44.] Despite numerous follow-up emails from both the
Greenfield Defendants and Axon requesting that the Estate comply with its discovery obligations,
[see Filing No. 50-2; Filing No. 50-2; Filing No. 51-1; Filing No. 51-2; Filing No. 51-3; Filing No.
51-4], the Estate failed to respond to either party’s discovery requests. Defendants were unable to
schedule depositions of the Estate’s witnesses without responses to the discovery requests. [See
Filing No. 51-3 at 1; Filing No. 50-2 at 2.]
C. Motions to Dismiss
On November 30, 2018, Axon filed its Motion for Dismissal, [Filing No. 50], and on
December 11, 2018, the Greenfield Defendants filed a similar Motion for Dismissal joining in
Axon’s Motion, [Filing No. 51]. Under Local Rule 7-1(c)(3), the Estate had 14 days to respond.
S.D. Ind. 7-1(c)(3)(A). The Estate failed to respond by the deadline and, to-date, has not filed a
response to the Motions for Dismissal, which are therefore ripe for review.
II.
DISCUSSION
Defendants argue that dismissal is appropriate because the Estate has wholly failed to
comply with court orders and discovery obligations and because this failure has prevented
Defendants from conducting discovery as required to litigate this case. [Filing No. 50; Filing No.
51.] Rule 41(b) provides 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 as a sanction for failure to prosecute is committed
to the sound discretion of the District Court. McInnis v. Duncan, 697 F.3d 661 (7th Cir. 2012)
(per curiam). Dismissal is regarded as a drastic sanction, appropriate when “there is a clear record

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of delay or contumacious conduct,” such as a pattern of failure to comply with Court orders. Id.
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 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). Whether the attorney or the client is
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 prosecute. First, the Estate failed to
serve their initial disclosures and preliminary witness and exhibit lists until directed, after the CMP
deadline had already passed, by the Magistrate Judge. Second, despite being ordered again by the
Magistrate Judge to do so, the Estate failed to serve a settlement demand and statement of special
damages—important information to allow Defendants to properly assess the matter and evaluate
the opportunity for early resolution. Third, despite extensions, orders from the Magistrate Judge,
and repeated requests from Defendants, the Estate has wholly failed to comply with its discovery
obligations. Finally, the Estate has failed to respond to the instant motion to dismiss, which
explicitly put the Estate on notice that Defendants would seek dismissal as a sanction for failure
to prosecute.

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Overall, the Estate has taken minimal action to prosecute this case since this lawsuit was
filed almost eleven months ago on April 13, 2018. Through the oversight of the Magistrate Judge,
the Estate was provided multiple opportunities to participate in this litigation and failed to do so.
The Court has no reason to believe that any other sanction would trigger a different response.
Therefore, the Court concludes that dismissal with prejudice is appropriate under Rule 41(b).
III.
CONCLUSION
Dismissal is a drastic sanction. But it is appropriate where, as here, the plaintiff fails to
participate in the litigation. The Court, therefore, GRANTS Defendants’ Motions to Dismiss, [50]
& [51] and DISMISSES the Estate’s Complaint WITH PREJUDICE.
Final judgment will issue accordingly.

Date: 3/12/2019

Distribution via ECF only to all counsel of record.

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