WALTON v. BMO HARRIS BANK N.A. et al
ORDER DISMISSING CASE - Ms. Walton's claim against Equifax is therefore DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b). 77 Motion for Clerk's Entry of Default, 78 Motion for Default Judgment and 79 Motion for Default Judgment are DENIED as moot. Final judgment will issue by separate entry. See Order for details. Signed by Judge James Patrick Hanlon on 9/16/22 (Copy mailed to Plaintiff). (LBT)
Case 1:21-cv-00365-JPH-TAB Document 83 Filed 09/16/22 Page 1 of 3 PageID #: 538
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ORDER DISMISSING CASE
Plaintiff, Deborah Walton, filed this case in February 2021 alleging Fair
Credit Billing Act and Fair Credit Reporting Act violations against BMO Harris
Bank, Equifax, Experian, and Trans Union. Dkt. 1; see dkt. 42 (amended
complaint). Experian and Trans Union have been dismissed by stipulation,
dkt. 46; dkt. 58, and the Court granted BMO Harris's motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), dkt. 65. Ms. Walton has filed a motion
for clerk's entry of default against the sole remaining defendant, Equifax, dkt.
77, which Equifax opposes, dkt. 80.
On September 1, 2022, the Seventh Circuit sanctioned Ms. Walton in an
unrelated appeal for "persist[ing] in pursuing frivolous litigation." Walton v.
First Merchants Bank, No. 22-1246, doc. 14 at 3 (7th Cir. Sept. 1, 2022) (citing
Support Sys. Intern., Inc. v. Mack, 45 F.3d 185 (7th Cir. 1995)). That Court
"direct[ed] the clerks of all federal courts in this circuit to return unfiled any
papers that Walton tries to file for two years, other than in cases concerning a
criminal prosecution against her or a habeas corpus proceeding." Id. at 3–4.
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That order governs this case—the Seventh Circuit did not exclude filings in
pending cases from its order that "any papers" be returned unfiled. See id.
Ms. Walton is therefore unable to prosecute this case until at least
September 1, 2024. Because of that delay, dismissal of this case for failure to
prosecute under Federal Rule of Civil Procedure 41(b) is appropriate. See Bolt
v. Loy, 227 F.3d 854, 856 (7th Cir. 2000) ("A plaintiff's failure to respond that
delays the litigation can be a basis for a dismissal for lack of prosecution.");
Tome Engenharia E. Transportes, Ltda v. Malki, 98 Fed. App'x 518, 520 (7th Cir.
Apr. 6, 2004) ("[A] lengthy period of inactivity" can warrant Rule 41(b)
dismissal). Indeed, the "power to [dismiss a case for failure to prosecute] is
necessary in order to prevent undue delays in the disposition of pending
cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (holding that Rule
41(b) dismissals may be made sua sponte). Ms. Walton is solely responsible for
the delay here—which will last at least two years—because she engaged in
persistent frivolous litigation that required sanctions. Walton, No. 22-1246,
doc. 14 at 3–4; see Simelton v. Alexander Cnty. Housing Auth., 2022 WL 729427
at *2 (7th Cir. Mar. 10, 2022) (affirming dismissal after plaintiff "did not
participate in his case for over six months"). Any result other than dismissal
would be unfair to Equifax. See Washington v. Walker, 734 F.2d 1237, 1239
(7th Cir. 1984) ("[P]rejudice may be presumed from an unreasonable delay.").
Finally, the ordinarily required warning before dismissal under Rule
41(b) is not appropriate here. See Bolt, 227 F.3d at 856. The Seventh Circuit's
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order prevents Ms. Walton from responding to any show cause order and from
resuming timely prosecution of this case. Walton, No. 22-1246, doc. 14 at 3–4.
In short, the Seventh Circuit's sanction demonstrates that Ms. Walton is
responsible for the "clear record of delay" here. See Collier v. SP Plus Corp., 889
F.3d 894, 897 (7th Cir. 2018). Ms. Walton's claim against Equifax is therefore
DISMISSED with prejudice under Federal Rule of Civil Procedure 41(b). Ms.
Walton's motion for entry of default, dkt. , and motions for default
judgment, dkt. ; dkt. , are DENIED as moot. Final judgment will issue
by separate entry.
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Carmel, IN 46082
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