Wilson v. Astrue

Filing 22

ORDER that no later than May 17, 2010, Wilson MUST file a response to the Commissioner's motion to dismiss. Failure to file such response will result in the dismissal of this action. Signed by Judge Rudolph T Randa on 04/14/2010. (cc: all counsel; via US mail to Thomas Wilson)(Koll, J)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

T H O M A S WILSON, P l a i n t i f f, v. M I C H A E L J. ASTURE C o m m iss io n e r of the Social Security Administration, Defendant. C a s e No. 08-C-890

DECISION AND ORDER

O n January 14, 2010, the Court issued its fourth order setting the briefing schedule to govern this action for judicial review pursuant to 42 U.S.C. § 405(g). That b rie f in g schedule set a March 11, 2010, deadline for the Defendant, Michael J. Asture, C o m m is s io n e r of the Social Security Administration ("Commissioner") to file his brief, the tra n sc rip t of the administrative proceedings, and his Notice of Filing and Preservation of R ig h ts . It also set an April 11, 2010, deadline for Wilson to file his reply brief. T h e Commissioner filed a motion to dismiss pursuant to Rule 41(b) of the F e d e ra l Rules of Civil Procedure and Civil Local Rule 41(b) for the Eastern District of W is c o n s in 1 on March 9, 2010. To date, Wilson has not filed any reply to that motion.

The Local Rules for the Eastern District of W i s c o n s in were amended on January 26, 2010, and became e ffe c tiv e on February 1, 2010. The amended local rules are available on the District's website, w w w .w i e d . u s c o u r ts .g o v . A copy of the rules will also be provided at no charge by the Office of the Clerk of Court, u p o n request in person or by mail.

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R e g a rd le ss of whether the deadline for the filing of Wilson's responding brief is calculated under Civil Local Rule 7(b) (E.D. Wis.), which as applicable to a motion to d is m is s requires that a response be filed within 21 days of the service of the motion, or the A p ril 11, 2010, deadline set by the Court's scheduling order, it is overdue. Civil Local Rule 41(c) provides: W h e n e v e r it appears to the Court that the plaintiff is not diligently p ro s e c u tin g the action, the Court may enter an order of dismissal w ith or without prejudice. Any affected party may petition for r e in s ta te m e n t of the action within 21 days. D is tric t courts have inherent authority to dismiss a case sua sponte for a plaintiff's failure to p ro s e c u te . Harrington v. City of Chi., 433 F.3d 542, 548 (7th Cir. 2006). A dismissal for lack o f prosecution is appropriate when there is a clear record of delay or contumacious behavior. C a s te e l v. Pieschek, 3 F.3d 1050, 1055 (7th Cir. 1993); Daniels v. Brennan, 887 F.2d 783, 785 (7 th Cir. 1989). No case should be dismissed for failure to prosecute without "explicit warning' o f the potential sanction, but there is no requirement that graduated sanctions be imposed b e f o re dismissing a case for failure to prosecute. Ball v. City of Chi., 2 F.3d 752, 755-56 (7th C ir. 1993). "Ideally, the Court should consider the frequency and magnitude of the plaintiff's f a ilu re to comply with deadlines for the prosecution of the suit, the apportionment of r e sp o n s ib i lity for those failures between the plaintiff and his counsel, the effect of those f a ilu re s on the judge's calendar and time, the prejudice if any to the defendant caused by the p la in tif f 's dilatory conduct, the probable merits of the suit, and the consequences of dismissal

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f o r the social objectives of the type of litigation that the suit represents." Aura Lamp & L ig h tin g Inc. v. Int'l Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003)(citation omitted). The Court will afford Wilson an additional opportunity to file a response to the C o m m is s io n e r's motion to dismiss. Wilson is advised that he must file a response to the C o m m is s io n e r's motion no later than May 17, 2010, and that failure to do so will result in the d is m is s a l of his action. NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: N o later than May 17, 2010, Wilson MUST file a response to the C o m m is s io n e r' s motion to dismiss. Failure to file such response will result in the dismissal of this action. Dated at Milwaukee, Wisconsin this 14th day of April, 2010. BY THE COURT s / Rudolph T. Randa Hon. Rudolph T. Randa U .S . District Judge

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