Opinion
IP 00-0427-C T/K.
September 5, 2002
ENTRY DIRECTING DISMISSAL
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
This is a negligence action. On December 21, 2001, Defendant, Hooks-SuperX, Inc. ("Hooks") moved for summary judgment. The court granted Plaintiffs, Terry Harris and Janet Harris (together the "Harrises"), two extensions of time within which to respond to the summary judgment motion, but as of this date, more than eight months later, the Harrises still have not responded. And this, after being three times advised of the consequences of a failure to respond.
Furthermore, almost one year ago, the court made its Entry Following Pretrial Conference of September 28, 2001, directing that if no attorney entered an appearance on Plaintiffs' behalf within ninety days, then Plaintiffs "must file notice within that 90 day period as to when they will be prepared to try the case and the things, such as additional discovery, that they would need to do during that period of preparation." (Entry Following Pretrial Conference, 9/28/01 at 1-2.) On the ninetieth day, Plaintiffs submitted a letter to the court reporting that they had been unable to find counsel and requesting additional time. The court allowed Plaintiffs to and including February 19, 2002, within which to respond to Defendant's Motion For Summary Judgment, and advised them of the nature of a summary judgment motion, the proper manner in which to respond, and the consequences of failing to respond. Plaintiffs did not respond to the summary judgment motion within the time allowed.
As a result, on March 27, 2002, the court ordered the Plaintiffs:
TO SHOW CAUSE in writing by May 1, 2002, why this cause should not be dismissed either pursuant to Fed.R.Civ.P. 41(b) because of their failure to prosecute this case or comply with the orders of the court; or in the alternative, why summary judgment should not be granted, either summarily pursuant to Local Rule 7.1 or on the merits.
(Order Show Cause of 3/27/02 at 2.) The show cause order advised Plaintiffs that "[t]he failure to show cause by the date required may result in a dismissal of this case." (Id.) The show cause order also noted that Plaintiffs had not provided the information required by the September 28, 2001 entry.
Plaintiffs submitted a letter, dated April 24, 2002, to the court, apparently in response to the show cause order. The letter described a variety of maladies from which the Plaintiffs allegedly suffer and requested the appointment of an attorney. The court denied the request for counsel in its Entry Denying Request For Appointment Of Counsel And Ordering Response of July 8, 2002. That entry directed Plaintiffs "to file a response to the pending motion for summary judgment on or before August 8, 2002," and advised Plaintiffs that failure to file a response may result in the motion being "ruled on without a response and/or their case may be dismissed for lack of prosecution. . . ." (Entry Denying Request of 7/8/02 at 3.) Plaintiffs did not file a response on or before August 8.
On August 16, 2002, the court made its Entry And Order Directing Plaintiffs To Respond To Request For Admissions And To Comply With Prior Court Orders. The entry specifically advised Plaintiffs of the consequences of a failure to respond to a request for an admission made under Rule 36 and allowed them fifteen days within which to respond to the Defendant's Request For Admissions To Plaintiff. The entry also gave Plaintiffs another opportunity to respond to the Defendant's summary judgment motion, giving them fifteen days within which to do so. The entry advised Plaintiffs that:
The failure to respond in a timely manner may result in a grant of summary judgment, either summarily pursuant to Local Rule 7.1, or on the merits; or a dismissal of this case pursuant to Federal Rule of Civil Procedure 41(b) because of Plaintiffs' failure to prosecute this case or comply with the orders of the court.
(Entry and Order of 8/16/02 at 6.) The August 16 Entry and Order specifically ordered Plaintiffs "to provide within fifteen days of the date of this entry the information requested in the September 28, 2001, entry" and stated that the "failure to comply with this order may result in the dismissal of this case pursuant to Federal Rule of Civil Procedure 41(b) because of Plaintiffs' failure to prosecute this case or comply with the orders of the court." (Id.)
Defendant has notified the court in writing that as of September 4, 2002, it has not received from Plaintiffs any response to Defendant's Request For Admissions To Plaintiff. In addition, Plaintiffs have neither filed an appropriate response to Defendant's motion for summary judgment nor submitted the information requested in the September 28, 2001 entry.
The court uses the phrase "appropriate response" because on September 3, 2002, the court received a letter from Plaintiffs, dated August 28, 2002, in apparent response to the most recent court order of August 16. The letter adds nothing new to the record. It indicates, without specifics other than a reference to foreclosure on the Plaintiffs' house, that the Plaintiffs' conditions have worsened. It also represents that Plaintiffs are still unable to obtain counsel and requests they be granted a day in court. In short, the letter simply reiterates what the Plaintiffs have said before. There is no indication that this letter was served on defense counsel.
The Plaintiffs' letter is insufficient to get this case to trial. The Harrises have been advised on several occasions of their obligation to respond to Hooks' summary judgment motion and the consequences for not doing so. They also have been advised of the proper manner in which to respond to that motion. As well, they have ignored many court orders directing them to accomplish certain tasks by various deadlines. For example, as noted, to this day they have not provided the information requested in the September 28 entry.
A federal district court has the authority to dismiss an action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute or comply with any court order. Fed.R.Civ.P. 41(b). The court's authority "to dismiss sua sponte for lack of prosecution has generally been considered an `inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); see also Fed. Election Comm'n v. Al Salvi for Senate Comm. 205 F.3d 1015, 1018 (7th Cir. 2000).
In this case, the Harrises have not only failed to prosecute their claims, but also have failed several times to comply with direct and specific court orders, see Entry Following Pretrial Conference of September 28, 2001; Order To Show Cause Why Case Should Not Be Dismissed of March 27, 2002; Entry Denying Request For Appointment Of Counsel And Ordering Response of July 8, 2002; Entry And Order Directing Plaintiffs To Respond To Request For Admissions And To Comply With Prior Court Orders. And, almost as many times, they have done so despite the court's admonitions that the failure to comply may result in the dismissal of their case because of their failure to prosecute or comply with orders of the court, see Order To Show Cause Why Case Should Not Be Dismissed of March 27, 2002, Entry Denying Request For Appointment Of Counsel And Ordering Response of July 8, 2002; Entry And Order Directing Plaintiffs To Respond To Request For Admissions And To Comply With Prior Court Orders of August 16, 2002. The court recognizes that the Harrises are proceeding pro se, that is without the benefit of representation by legal counsel. Their pro se status alone, however, does not relieve them of their obligation to prosecute their case and comply with court orders. See, e.g., Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). Therefore, the court determines that the circumstances of this case justify a dismissal for failure to prosecute and failure to comply with court orders.
In Ball v. City of Chicago, 2 F.3d 752 (7th Cir. 1993), the Seventh Circuit instructed the district courts that:
the decision whether to dismiss a suit for failure to prosecute should, ideally, take full and careful account of the frequency and magnitude of the plaintiff's failures to comply with deadlines for the prosecution of the suit, the apportionment of responsibility for those failures between the plaintiff and his counsel and therefore the appropriateness of sanctioning the plaintiff's lawyer rather than the plaintiff, the effect of the failures in taxing the judge's time and disrupting the judge's calendar to the prejudice of other litigants, the prejudice if any to the defendant from the plaintiff's dilatory conduct, the probable merits of the suit, and (what is closely related) the consequences of dismissal for the social objectives of the type of litigation that the suit represents.
Id. at 759-60. The court has carefully considered these factors and finds that as a whole, they counsel in favor of dismissing this case for Plaintiffs' failure to prosecute and comply with court orders. Though the court has been patient, Plaintiffs repeatedly have failed to comply with specific court orders and deadlines. This case has been on the docket for a while — it was filed on March 10, 2000, and is almost two and one-half years old. The summary judgment motion was filed almost nine months ago. Little, if anything, has been done by Plaintiffs to move this case forward since their former counsel withdrew more than one year ago. Plaintiffs themselves are responsible for these shortcomings.
Though the court could have dismissed this case for want of prosecution at an earlier time, the court allowed Plaintiffs many additional opportunities to respond to the requests for admissions, comply with the September 28, 2001 order, respond to the summary judgment motion, and respond to previous court orders. Just last month instead of dismissing the case or summarily ruling on the summary judgment motion, the court determined that the lesser sanction of once again directing Plaintiffs to comply was in order. This was to no avail. In addition, there is a suggestion in the record based on an alleged videotape of Mr. Harris performing roofing work on his house in the heat of last summer that the merits of Plaintiffs' claims are not what they claim them to be. At some point the court must decide that the interests of justice and the interests of the litigants in other cases on this judge's docket as well as the interests of the Defendant are best served by bringing a case in which the Plaintiffs have lost sufficient interest (at least interest sufficient to prosecute the case) to a close. This case has reached that point. Therefore, the court finds that this case should be dismissed pursuant to Rule 41(b) for want of prosecution by Plaintiffs and for their failure to comply with numerous court orders.
Even if the court were not inclined to dismiss this case for lack of prosecution and failure to comply with court orders under Rule 41(b), Hooks has shown that it is entitled to summary judgment. Summary judgment may be granted only if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a summary judgment motion, the court must decide whether there is a genuine issue of material fact. Outlaw v. Newkirk, 259 F.3d 833, 836 (7th Cir. 2001). The moving party, in this case Defendant Hooks, carries the initial burden "to identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Id. at 837 (quotation omitted) (emphasis added). If the moving party meets this burden, then the nonmoving party, here the Harrises, "must `set forth specific facts showing that there is a genuine issue for trial.'" Id. (quoting Fed.R.Civ.P. 56(e)). The court concludes that Hooks has met its initial burden, and the Harrises have not proffered any facts to demonstrate an issue for trial.
The summary judgment motion relies in part on Plaintiffs' failure to respond to "Defendant's Request For Admissions To Plaintiff [sic]," ("Request For Admissions") which was served on Plaintiffs, according to attached Certificate of Service, on September 28, 2001, and made pursuant to Rule 36 of the Federal Rules of Civil Procedure. Any matter admitted under Rule 36 "is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Fed.R.Civ.P. 36(b). The court's Entry and Order of August 16 gave Plaintiffs additional time (fifteen more days) within which to respond to the Defendant's Request For Admissions To Plaintiff. Defendant, however, has advised the court that Plaintiffs have not responded within the time allowed, see Defendant's Report To The Court Pursuant To The Court's Entry And Order Of August 16, 2002. Therefore, pursuant to Rule 36 and the August 16 Entry and Order, the matters contained in the Defendant's Request For Admissions To Plaintiff are deemed admitted and conclusively established by Plaintiffs' failure to serve a written answer or objection to the requests.
The rule provides in pertinent part:
Each matter of which an admission is requested shall be separately set forth. The matter is admitted, unless, within 30 days after service of the request . . . the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party. . . .
Fed.R.Civ.P. 36(a).
Damages are an essential element the Plaintiffs must prove in order to prevail on their negligence claims against Defendant. A negligence action has three elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury to the plaintiff proximately caused by that breach. See Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind. 1994); Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1262 (Ind.Ct.App. 2002). Thus, to prove their negligence claims, Plaintiffs must offer some evidence of injury or damages. This they have not done and cannot do.
Request For Admission Number 10 states: "Admit that defendant did not cause any injuries or damages to plaintiffs." Because of the Plaintiff's failure to respond to the requests for admissions, the matter asserted in this request for admission is deemed admitted and conclusively established. Fed.R.Civ.P. 36(b). Rule 36 admissions can serve as the factual predicate for summary judgment. United States v. Kasuboski, 834 F.2d 1345, 1350 (7th Cir. 1987). Plainly and simply, by operation of Rule 36, the Harrises have admitted that Hooks did not cause them any injuries or damages. Given this admission, the Harrises cannot prove an essential element of their negligence claims — injury, and Hooks is therefore entitled to judgment as a matter of law.
A judgment, dismissing this action with prejudice will be entered.
ALL OF WHICH IS ORDERED this 5th day of September 2002.