BLACK RUSH MINING LLC et al v. BLACK PANTHER MINING LLC et al

Filing 96

ENTRY denying Defendants' 83 Motion to Dismiss for Lack of Prosecution. Signed by Judge Richard L. Young on 3/26/2013. (PG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION

BLACK RUSH MINING LLC,
INDIANA FARMS, INC.
LAFAYETTE ENERGY COMPANY, and
JOHN A. BRANDT individually,

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Plaintiffs/Counterclaim-Defendants,
vs.
BLACK PANTHER MINING, LLC,
FIVE STAR MINING,
BB MINING,
PATRICK BLANKENBERGER
individually,
DAVID M. BLANKENBERGER
individually,
DONALD BLANKENBERGER
individually,
Defendants/Counterclaim-Plaintiffs.

3:12-cv-24-RLY-WGH

ENTRY ON DEFENDANTS’ MOTION TO DISMISS
FOR FAILURE TO PROSECUTE
Plaintiffs and Counterclaim-Defendants, Black Rush Mining, LLC, Indiana Farms,
Inc., Lafayette Energy Company, and John A. Brandt, individually, filed suit against
Defendants and Counterclaim-Plaintiffs, Black Panther Mining, LLC, Five Star Mining,
BB Mining, and Patrick, David, and Donald Blankenberger, in their respective individual
capacities, alleging breach of partnership agreement and demanding an accounting.
Defendants counterclaimed on the same grounds. On October 3, 2012, Defendants
moved to dismiss Plaintiffs’ claim for failure to prosecute or comply with court orders.
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Upon defendant’s motion, a trial court, as part of its inherent authority, may
involuntarily dismiss a plaintiff’s claim for failure to prosecute. Williams v. Chicago Bd.
of Educ., 155 F.3d 853, 857 (7th Cir. 1998). Before dismissing a case, an explicit
warning must be given to plaintiff’s counsel that further failure to comply with court
orders may result in dismissal. Ball v. City of Chicago, 2 F.3d 752, 755-56, 760 (7th Cir.
1993) (citations omitted). The dismissal “operates as an adjudication on the merits.”
FED. R. CIV. P. 41(b).
While the parties have briefed the issue of whether Plaintiffs have failed to
prosecute their claim, the court need not reach the merits of their arguments. It is clear
that no warning was given by the court to Plaintiffs’ counsel. Unless Plaintiffs’ counsel
knows or should reasonably know that a Rule 41(b) dismissal is a possibility, dismissal is
not a proper exercise of judicial discretion. Ball, 2 F.3d at 756. The court therefore
DENIES Defendants’ motion to dismiss for failure to prosecute. (Docket # 83).
SO ORDERED this 26th day of March 2013.
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RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.
Distribution via First-Class U.S. Mail to:
Robert W. Sacoff
Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP
311 South Wacker Drive
Suite 5000
Chicago, IL 60606
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Joseph Nye Welch, II
Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP
311 South Wacker Drive
Suite 5000
Chicago, IL 60606
Ian Jared Block
Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP
311 South Wacker Drive
Suite 5000
Chicago, IL 60606

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