Filing 96

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

Download PDF
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, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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. 1 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. __________________________________ ________________________________ 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 2 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 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?