Opinion
No. 2:04-CV-402 PS.
May 17, 2005
ORDER
This matter is before the Court on Paul Heuring Ford, Inc.'s Motion to Dismiss and for Sanctions [Doc. 33]. Defendant alleges that pro se Plaintiff, Curtis Holt, has failed to prosecute this action, participate in a Party Planning Meeting, and participate in the January 6, 2005 Preliminary Pretrial Conference. Holt contends that the matter should not be dismissed because he was ill and physically incapacitated and unable to attend the Pretrial Conference. Because Holt has clearly expressed his desire to prosecute this matter in responding to the Defendant's Motion to Dismiss, the Court is willing to afford Holt one more chance to comply with Court-ordered deadlines and to attend all Court conferences/hearings.
PROCEDURAL BACKGROUND
On September 29, 2004, Holt filed his complaint in this matter alleging violations of the Truth In Lending Act, Equal Credit Opportunity Act, Federal Consumer Leasing Act, Fair Credit Reporting Act, among others. On November 18, 2004, Magistrate Judge Paul Cherry set the Rule 16 Preliminary Pretrial Conference for January 6, 2005, and established that the parties proposed discovery plan in accordance with Fed.R.Civ.P. 26(f) was due no later than five days before the conference. ( See [Doc. 22].)
Paul Heuring Ford attempted to contact Holt numerous times in order to schedule a Party Planning Meeting. On December 23, 2004, Grant A. Liston, counsel for Paul Heuring Ford, sent Holt a letter via certified mail notifying Holt that a Party Planning Meeting had been scheduled for December 28, 2004 at 2:00 p.m. ( See Defendant's Ex. C.) This letter was claimed by B. Holt on December 27, 2004. ( See Defendant's Ex. D.) Holt was unable to be contacted for the Planning Meeting and did not participate.
Holt contends that he was unaware of the Court's notice setting the Preliminary Pretrial Conference and that he was not made aware of the receipt of the letter claimed by B. Holt. Holt also contends that he was unavailable for the Party Planning Meeting because he had surgery on December 28, 2004, and was physically incapacitated and unable to attend. ( See Am. Affidavit of Plaintiff Opposing Dismissal.)
On January 6, 2005, Plaintiff Holt failed to appear for the Preliminary Pretrial Conference. Holt never filed a motion to continue the Preliminary Pretrial Conference. Less than two weeks later, Defendant Paul Heuring Ford filed its Motion to Dismiss.
DISCUSSION
A pro se plaintiff maintains the duty to diligently pursue his cause of action in accordance with court orders and the Federal Rules of Civil Procedure. See Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir. 1990) (explaining that the 10-day deadline for filing a Rule 59(e) motion and Rule 11 obligations apply to pro se plaintiffs). Under Rule 41(b), district courts have the authority to dismiss actions for failure to prosecute. Fed.R.Civ.P. 41(b); Aura Lamp Lighting, Inc. v. Int'l Trading Corp., 325 F.3d 903, 909-10 (7th Cir. 2003) (holding that the power to control a court's docket is vested in the trial judge, and that there comes a point when a litigant's disregard of scheduling orders becomes so serious that a sanction, including the rendering of the ultimate sanction of dismissal, is in order). Specifically, Rule 41(b) provides that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant." The power to dismiss a case for failure to prosecute or failure to comply with court orders protects the litigants and aids the court in keeping control over its own docket. Ladien v. Astrachan, 128 F.3d 1051, 1056-57 (7th Cir. 1997).
Dismissal according to Rule 41(b) is a harsh sanction and therefore its use should be limited. Ladian, 128 F.3d at 1056-57. In fact, there must be an explicit warning to counsel or to a pro se litigant before the case is dismissed. Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993). "[T]he 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 prosecution of the suit . . . 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.
Here, Plaintiff Holt has not repeatedly failed to comply with deadlines for prosecution of the suit because this suit is still in its earliest stages. Also, there has not been any significant prejudice to the Defendant. Further, the Court could not dismiss this matter pursuant to Rule 41(b) at this time even if it wished to because Holt has never been explicitly warned that involuntary dismissal was imminent.
CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss and For Sanctions [Doc. 33] is hereby DENIED. Defendant's Motion for Hearing is DENIED AS MOOT [Doc. 37]. Curtis Holt is hereby EXPLICITLY WARNED that any future failures to comply with Court ordered deadlines or failures to appear at Court conferences or hearings will result in dismissal of this matter for want of prosecution pursuant to Fed.R.Civ.P. 41(b). If Plaintiff is unable to abide by a Court order or attend a conference/hearing due to illness, he shall file a motion with the Court seeking additional time to comply or seeking a continuance of the conference/hearing. Plaintiff Holt is also hereby ORDERED to supply to the Clerk of the Court his current address and phone number where he may be reached by the parties and by the Court.
SO ORDERED.