Miller, Russell v. Erie Insurance Company

Filing 5

ORDER FOR DISMISSAL without prejudice for want of prosecution. Signed by District Judge William M. Conley on 8/13/2015. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

RUSSELL MILLER,
Plaintiff,

ORDER

v.
ERIE INSURANCE COMPANY,

15-cv-223-wmc

Defendant.
On April 13, 2015, plaintiff’s counsel filed this civil action on Russell Miller’s
behalf under 28 U.S.C. § 1332, alleging that Erie Insurance Company breached its
insurance contract with Miller by refusing to pay for hail damage to his home.
The court issued a summons on April 15, 2015, and twice, on June 1 and July 15,
directed plaintiff to file proof of service promptly. In the second of these notices, the
court also scheduled a telephonic status conference for August 12, 2015, indicating that
the court expected plaintiff’s counsel to explain why the case had not yet moved forward.
Not only did plaintiff fail to file proof of service despite two warnings, but plaintiff’s
counsel also failed to call in for the telephonic conference on August 12, and the court
was only able to reach counsel’s answering machine that day after the scheduled time for
the conference had passed.
Having filed this action on April 13, 2015, plaintiff’s 120-day period to serve
defendant ran on August 11, 2015. See Fed. R. Civ. P. 4(m). To date, plaintiff’s counsel
has still offered no just cause for plaintiff’s failure to file proof of service, nor has he
moved the court to extend the time permitted for plaintiff to serve defendant.

Accordingly, the complaint will now be dismissed without prejudice for want of
prosecution under the inherent power necessarily vested in a court to manage its own
docket. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962);
Ohio River Co. v. Carrillo, 754 F.2d 236, 238 n.5 (7th Cir. 1985).

ORDER
IT IS ORDERED that the complaint filed by plaintiff Russell Miller is
DISMISSED without prejudice for want of prosecution. Plaintiff is advised that relief
from this order may be granted upon a showing of good cause.
Entered this 13th day of August, 2015.
BY THE COURT:
/s/
_____________________
WILLIAM M. CONLEY
District Judge

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