Dukler v. Comenity Bank

Filing 15

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 5/8/2015. Case DISMISSED because plaintiff is not diligently prosecuting the action. (cc: all counsel, via mail to Joe Dukler)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOE DUKLER,
Plaintiff,
-vs-

Case No. 15-C-15

COMENITY BANK,
Defendant.

DECISION AND ORDER
Plaintiff Joe Dukler (“Dukler”) filed this action against Defendant
Comenity Bank (“Comenity”), alleging that Comenity violated the
Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.

After

Comenity filed its Answer, the Court sent a letter advising the parties that
it would conduct a Rule 16(b) scheduling conference by telephone on May 5,
2015, and requiring that the parties participate in a settlement/discovery
conference at least 21 days prior to May 5 and file a report at least 14 days
prior to May 5. (ECF No. 8.)
On April 15, 2015, the Court granted the motion to withdraw filed
by Dukler’s attorney. (ECF No. 12.) The motion was based on counsel’s
inability to communicate with Dukler over a two-month period; Dukler
failed to respond to counsel’s telephone messages, emails, and letters.

Comenity filed a report pursuant to Fed. R. Civ. P. 26(f) stating that
based on counsel’s statements in the motion to withdraw, it appears that
Dukler has abandoned his case; that Comenity does not have Dukler’s
contact information and has not communicated with him since his counsel
withdrew; and suggesting that the Court issue an order for Dukler to show
cause why the case should not be dismissed. (ECF No. 13.)
On May 4, the courtroom clerk telephoned Dukler and left a
message reminding him of the May 5 scheduling conference call. On May
5, the courtroom clerk called Dukler at the time of the scheduled call, no
person answered the phone, and the clerk left a message for Dukler stating
that the Court would be issuing an order regarding the status of the case.
The clerk then called Comenity, advised counsel of the circumstances, and
provided Comenity with Dukler’s contact information.

No scheduling

conference was conducted.
Dukler is advised that Civil L.R. 41(c) (E.D. Wis.) provides:
“Whenever it appears to the Court that the plaintiff is not diligently
prosecuting the action, the Court may enter an order of dismissal with or
without prejudice. Any affected party may petition for reinstatement of the
action within 21 days.” Dukler is not diligently prosecuting this action
because he did not participate in the filing of Rule 26(f) report or the
-2-

scheduling conference. The Court

views

Dukler’s inaction as an

abandonment of this action which results in the dismissal of this action.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
This action is DISMISSED.
The Clerk of Court is DIRECTED TO ENTER JUDGMENT
accordingly.
Dated at Milwaukee, Wisconsin, this 8th day of May, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-3-