UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ETHEL M. SMITH, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:13-CV-342-TLS-JEM

)

PACESETTER TEMPORARY SERVICE, )

Defendant. )

REPORT AND RECOMMENDATION OF 

UNITED STATES MAGISTRATE JUDGE PURSUANT TO

28 U.S.C. § 636(b)(3) and Local Rule 72-1

This matter is before the Court due to the failure of Plaintiff Ethel M. Smith to appear at the

Show Cause Hearing of April 17, 2014, at 10:30 a.m., the Show Cause Hearing of April 3, 2014, at

10:30 a.m., and the Rule 16 Pretrial Conference of February 20, 2014, at 11:00 a.m.

On January 16, 2014, by written Order, the Court set this matter for a Pretrial Conference

on February 20, 2014, at 11:00 a.m. Plaintiff Smith failed to appear without explanation, so the

Court set the matter for a hearing to inquire into Plaintiff Smith’s failure to appear, to be held on

April 3, 2014. The docket reflects on March 20, 2014, Plaintiff Smith filed a motion requesting

leave to appear telephonically at the April 3, 2014, hearing, an action that indicated she was aware

of the scheduled hearing. On March 28, 2014, the Court denied that request and reaffirmed the April

3, 2014, setting for the show cause hearing. Plaintiff Smith failed to appear on April 3, 2014,

without explanation and the Court set the matter for a second show cause hearing for April 17, 2014,

warning Plaintiff Smith that her failure to appear could result in sanctions, including dismissal of

her case. Plaintiff Smith failed to appear at the show cause hearing set for April 17, 2014, without

explanation. The Court issued a final Show Cause Order, warning Plaintiff Smith that a failure to

show cause, in writing on or before May 5, 2014, why she failed to appear to numerous hearings

would result in the undersigned judge recommending that her case be dismissed. The docket reflects

that a copy of the Order was mailed to Plaintiff Smith and that Smith received the Order on April
25, 2014 [DE 25]. Plaintiff Smith has not responded to the Show Cause Order. 

Under Rule 41(b), a court may dismiss a claim “[i]f the plaintiff fails to prosecute or comply

with . . . a court order . . .” Fed. R. Civ. P. 41(b). Dismissal for failure to prosecute “is an

extraordinarily harsh sanction that should be used only in extreme situations, when there is a clear

record of delay or contumacious conduct, or when other less drastic sanctions have proven

unavailing.” Gabriel v. Hamlin, 514 F.3d 734, 736 (7th Cir. 2008) (quoting Kruger v. Apfel, 214

F.3d 784, 787 (7th Cir. 2000)) (quotation marks and other citations omitted). In most cases, the

district court should warn the plaintiff that such a sanction may be imposed. Gabriel, 514 F.3d at

736; see also Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720, 725 (7th Cir. 2004) (“We have

repeatedly held that a district court ordinarily may not dismiss a case for want of prosecution without

first providing an explicit warning to the plaintiff.”).

Given the conduct of Plaintiff Smith, this case presents one of those “extreme situations.” 

Gabriel, 514 F.3d at 736. Plaintiff failed to appear at the preliminary pretrial conference and failed

to appear at the two subsequent show cause hearings. The Court also finds that proper warning has

been given to Plaintiff. See Gabriel, 514 F.3d at 736; Sharif, 376 F.3d at 725. “‘Due warning’ need

not be repeated warnings and need not be formalized in a rule to show cause . . . . But there should

be an explicit warning in every case.” Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993). In

this case, Plaintiff received “due warning” in multiple formal show cause orders, including the most

recent Show Cause Order sent via certified mail, and the Court finds that dismissal is warranted by

Plaintiff’s failure to comply with the Show Cause Order of April 17, 2014.

Accordingly, the Court finds that no cause has been shown and RECOMMENDS that the

District Court DISMISS this case without prejudice.

This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(B). 

Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have ten (10) days after being served with a copy

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of this Recommendation to file written objections thereto with the Clerk of Court. The failure to file

a timely objection will result in the waiver of the right to challenge this Recommendation before

either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th

Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); Provident Bank v. Manor Steel

Corp., 882 F.2d 258, 260-261 (7th Cir. 1989).

SO ORDERED this 13th day of May, 2014.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN 

UNITED STATES DISTRICT COURT 

cc: Judge Theresa L. Springmann

All counsel of record 

Plaintiff Ethel M. Smith, pro se, by first class and certified mail

1584 Garfield Street, Gary, Indiana 46404. 

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