JHB Investments et al v. Washington County et al

Filing 25

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 4/27/2018. Case DISMISSED with prejudice for lack of diligence under Civil L.R. 41(c). (cc: all counsel, via email to John Bagley)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JHB INVESTMENTS, LLC and
JOHN H. BAGLEY
Plaintiffs,
v.

Case No. 17-cv-27-pp

CITY OF WEST BEND,
GWENN SOLDNER, TJ JUSTICE,
and KURTIS McMAHON,
Defendants.

ORDER DISMISSING CASE FOR LACK OF DILIGENCE
UNDER CIVIL L.R. 41(c)

On January 5, 2017, the defendants removed this case from Washington
County Circuit Court to the federal court for the Eastern District of Wisconsin.
Dkt. No. 1. The plaintiffs did not move for remand. Six weeks later, on
February 17, 2017, the court received a letter from Attorney Aaron DeKosky of
Padway & Padway, Ltd., indicating that the plaintiffs had hired him to
represent them. Dkt. No. 10. Once Attorney DeKosky was on board, the
plaintiffs agreed to dismiss several of the defendants named in the original
complaint. Dkt. No. 14.
On April 24, 2017, the plaintiffs filed an amended complaint, dkt. no. 17,
and the four remaining defendants answered on May 9, 2017, dkt. no. 18. The
court conducted a Rule 16 scheduling conference on October 5, 2017; at that

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time, the court set a deadline of April 30, 2018 for completing discovery, and a
deadline of May 16, 2018 for the parties to file dispositive motions. Dkt. No. 21.
On December 29, 2017, Attorney Dekosky filed an unopposed motion to
withdraw from representing the plaintiffs. Dkt. No. 22. As is the court’s usual
practice, before the court granted that motion, the court wanted to ensure that
the individual plaintiff, John Bagley, understood that he could not represent
JHB Investments, LLC, because under both Wisconsin and federal law, the LLC
plaintiff had to be represented by counsel. Accordingly, the court scheduled a
status conference for February 5, 2018. The court provided plaintiff Bagley
with notice of the February 5, 2018 hearing and ordered him to appear by
phone or in person in court. See Text-Only Order January 23, 2018. Bagley did
not appear at the February 5, 2018 status conference. Dkt. No. 23. During the
hearing, Attorney Dekosky indicated that one of the reasons that he had moved
for withdrawal was that he had had difficulty communicating with defendant
Bagley. Id. In response to the court’s request, Attorney Dekosky provided the
court with Bagley’s contact information, and indicated that it would make an
effort to reach him.
The court’s staff was able to reach Bagley, but had difficulty setting up a
scheduling conference. This difficulty resulted in the court issuing an order on
April 3, 2018, in which the court granted Attorney Dekosky’s unopposed
motion to withdraw. Dkt. No. 24. The court described its efforts to contact
Bagley:
First, the court’s staff emailed Bagley. He did not respond. Next,
the court’s staff called Bagley, who indicated that he had gotten
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the email, and that he had forwarded it to someone. When asked
about dates for a hearing, plaintiff Bagley indicated that he was
not in his office, and asked the court’s staff to call him back later
that afternoon. When staff called later that afternoon, Bagley said
he was in his car and could not discuss dates. He asked staff to
call him at 9:00 the next morning. Staff did so, and the phone went
to voice-mail; staff left a message asking Bagley to call back to
discuss the hearing dates. Mr. Bagley did not call back.
Id. at 3.
Despite the fact that these efforts had failed, the court’s April 3, 2018
order gave Bagley one last chance to appear, so the court could explain what
he needed to do if he wanted the case to go forward with both plaintiffs. The
April 3, 2018 order set a hearing for April 24, 2018 at 11:00 a.m., and
instructed that
the plaintiffs must appear at that hearing if they wish to
pursue this case further. Plaintiff John Bagley may represent
himself, if he chooses to do so, but he must appear at the hearing
regardless. JHB Investments must appear at the hearing
represented by a lawyer. John Bagley may not appear for JHB
Investments on April 24.
Id. at 4 (emphasis in original). In the very last paragraph of the court’s April 3,
2018 order, the court warned Bagley that “If the plaintiffs do not appear,
either by phone or in person, at the April 24, 2018 hearing, the court
will dismiss this case for lack of prosecution under Civil. L.R. 41
(E.D.Wis.).” Id. (emphasis in original).
Bagley did not appear at the hearing on April 24, 2018.
Civil Local Rule 41(c) of the Local Rules for the Eastern District of
Wisconsin allows a court to dismiss a case with or without prejudice “whenever
it appears to the court that the plaintiff is not diligently prosecuting the
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action[.]” The court finds that the plaintiffs have not diligently prosecuted this
case, and will dismiss it. The remaining question is whether the dismissal
should be with or without prejudice. At the April 24, 2018 hearing, the
defendants asked the court to dismiss the case with prejudice, given Bagley’s
lack of cooperation with his attorney and the court, and the delay it had
caused. The court agrees. The justice system is open and available to those
who want to use it in good faith, to pursue their rights and to resolve their
disputes in an orderly and fair way. But the system requires something of the
people who want to use it. It requires that they follow the rules, and participate
in good faith. The plaintiffs have not done that here, and the court finds that
dismissal with prejudice is appropriate.
The court ORDERS that this case is DISMISSED WITH PREJUDICE for
lack of diligence under Civil L.R. 41. The clerk of court shall enter judgment
accordingly.
This order and the judgment to follow are final. Under Civil Local Rule
41(c), a party whose case has been dismissed may, within twenty-one (21)
days of the date of the dismissal order, file a petition asking the court to
reinstate the case. A dissatisfied party also may appeal the order of dismissal
to the Court of Appeals for the Seventh Circuit, by filing in this court a notice of
appeal within thirty (30) days of the entry of judgment. See Fed. R. App. P. 3,
4. This court may extend this deadline if a party timely requests an extension
and shows good cause or excusable neglect for not being able to meet the 30day deadline. See Fed. R. App. P. 4(a)(5)(A).
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Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within twenty-eight (28)
days of the entry of judgment. Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more than
one year after the entry of the judgment. The court cannot extend either
deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 27th day of April, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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