IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

KENNETH JOHNSON, )

)

Plaintiff, )

)

vs. ) NO. 2:15-CV-54

)

BOILERMAKERS LOCAL #374, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the Motion to Dismiss Case

filed by the plaintiff, Kenneth Johnson, on November 16, 2016. (DE

#33.) For the reasons set forth below, the motion REMAINS UNDER

ADVISEMENT. The plaintiff, Kenneth Johnson, is ORDERED to inform

the Court, in writing by July 18, 2017, whether he wishes to: (1)

withdraw his motion to dismiss, in which instance he must be

prepared to immediately and actively prosecute his case; or (2)

proceed with voluntarily dismissing his case, knowing that such

dismissal will be with prejudice. The plaintiff, Kenneth Johnson,

is CAUTIONED that if he does not respond by the deadline, this case

will be dismissed with prejudice without further warning. 

BACKGROUND 

The plaintiff, Kenneth Johnson (“Plaintiff”), filed a pro se

employment discrimination complaint against the defendant,
Boilermakers Local #374 (“Defendant”), on February 2, 2015; the

complaint was assigned cause number 2:15-CV-54. On January 15,

2016, Plaintiff filed another complaint against Defendant which was

assigned cause number 2:16-CV-19. Both complaints were brought

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.

section 2000e-5, as amended, and The Age Discrimination in

Employment Act, 29 U.S.C. section 621. Plaintiff attached a

Dismissal and Notice of Rights (“Notice”) from the Equal Employment

Opportunity Commission (“EEOC”) to each complaint; the first Notice

was issued on November 18, 2014, and the second Notice was issued

on December 10, 2015. Both Notices state:

Title VII . . . [and] the Age Discrimination

in Employment Act: This will be the only

notice of dismissal and of your right to sue

that we will send you. You may file a lawsuit

against the respondent(s) under federal law

based on this charge in federal or state

court. Your lawsuit must be filed WITHIN 90

DAYS of your receipt of this notice; or your

right to sue based on this charge will be

lost.

(Cause no. 2:15-CV-54, DE #1, p. 5; Cause No. 2:16-CV-19, DE #1, p.

5.) On March 16, 2016, Magistrate Judge John E. Martin (“Judge

Martin”) ordered the consolidation of the two cause numbers and

directed that all future filings be made in cause number 2:15-CV-54

only. 

On September 16, 2016, Defendant filed a motion entitled

“Defendant’s Verified Fed. R. Civ. P. Rule 37(a)(3)(B) and

(b)(2)(A) Motion to Compel Plaintiff Kenneth Johnson to Produce

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Initial Disclosures and to Impose Sanctions on the Plaintiff or to

Dismiss the Case for Want of Prosecution.” In it, Defendant argued

that the Court should compel Plaintiff to produce his initial

disclosures and impose sanctions on him for not doing so sooner;

alternatively, Defendant asked for dismissal of the lawsuit with

prejudice for failure to comply with Court ordered discovery. 

On November 9, 2016, Judge Martin held a Show Cause Hearing on

the question of whether Plaintiff should be sanctioned for his

failure to comply with the Court’s discovery schedule. In an order

memorializing the details of the hearing, Judge Martin indicated

that he had found cause shown, so he had imposed no sanctions. At

Plaintiff’s request, Judge Martin granted Plaintiff leave to file

a motion to dismiss the case without prejudice, on or before

November 17, 2016, and ordered Defendant to respond to it on or

before November 30, 2016. Additionally, because Defendant objected

to dismissal without prejudice but had failed to follow Local Rule

7-1(a) when filing its previous motion, Judge Martin ordered

Defendant to re-file its motion to dismiss with prejudice as a

separate motion by November 17, 2016, and granted Plaintiff until

November 30, 2016, to respond. 

On November 16, 2016, Plaintiff filed the instant motion to

dismiss. In it, he requests that the case be dismissed without

prejudice because he does not have the funds to retain legal

counsel, because if or when he does retain counsel, such counsel

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will need time to review and prepare the case, and because he needs

additional time to find better employment. Defendant filed a

response on November 30, 2016, arguing that the motion should be

denied because “[i]t will serve no useful purpose to permit

Plaintiff to dismiss his case without prejudice because of the

requirements of Title VII and its 90-day period for filing a

lawsuit after the receipt of the Notice of Suit Rights.” (DE #34,

p. 3.) Defendant asks the Court to deny Plaintiff’s motion to

dismiss without prejudice and instead dismiss the case with

prejudice. Plaintiff did not file a reply. 

Despite being ordered by Judge Martin to re-file its own

motion to dismiss with prejudice as a separate motion, Defendant

chose to simply “incorporate” the motion into its response brief

via a footnote. (See DE #34, p. 2, n. 4.)

ANALYSIS

Federal Rule of Civil Procedure 41(a)(2) provides that an

“action may be dismissed at the plaintiff’s request only by court

order, on terms that the court considers proper.” Fed. R. Civ. P.

41(a)(2). Unless otherwise stated, such dismissal is without

prejudice. Id. The Seventh Circuit has delineated several factors

for a district court to consider when determining whether a

plaintiff’s motion for voluntary dismissal should be denied,

including “the defendant’s effort and expense of preparation for

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trial, excessive delay and lack of diligence on the part of the

plaintiff in prosecuting the action, insufficient explanation for

the need to take a dismissal, and the fact that a motion for

summary judgment has been filed by the defendant.” Pace v. S. Exp.

Co., 409 F.2d 331, 334 (7th Cir. 1969). Rather than being

mandatory, however, the factors are simply a guide for the trial

court judge, with whom discretion ultimately rests, to consider.

Tyco Laboratories, Inc. v. Koppers Co., Inc., 627 F.2d 54, 56 (7th

Cir. 1980). “In exercising its discretion the court follows the

traditional principle that dismissal should be allowed unless the

defendant will suffer some plain legal prejudice other than the

mere prospect of a second lawsuit.” Stern v. Barnett, 452 F.2d

211, 213 (7th Cir. 1971) (citation omitted).

Looking at the instant case, it would appear that the factors

weigh in favor of dismissal. The action has not progressed beyond

the initial disclosure phase of discovery, so it is highly unlikely

that Defendant has expended significant effort and expense in

preparation for trial. Similarly, no motion for summary judgment

has been filed. While it is true that Plaintiff has been less than

diligent in prosecuting his case, Judge Martin found good cause

shown for Plaintiff’s failure to comply with the Court’s scheduling

orders and declined to impose sanctions. And, although Plaintiff’s

explanation for desiring dismissal is not lengthy, the fact that he

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wishes to hire an attorney to help with his case but currently

lacks the financial means to do so is persuasive. 

However, that said, Defendant is correct in pointing out that

the ninety day filing requirement in employment discrimination

cases presents a problem. See 42 U.S.C. § 2000e–5(f)(1). As noted

by the Seventh Circuit:

When a federal civil action is dismissed

without prejudice, the statute of limitations

runs continuously. It is not reset by the

filing and dismissal as it is in some states

(including Illinois), which allow litigants a

period to re-file after a dismissal. In

federal practice, by contrast, when a suit is

dismissed, the tolling effect of the filing of

the suit is wiped out and the statute of

limitations is deemed to have continued

running from whenever the cause of action

accrued, without interruption by that filing.

In other words, a suit dismissed without

prejudice is treated for statute of

limitations purposes as if it had never been

filed.

Lee v. Cook Cnty., Ill., 635 F.3d 969, 971-72 (7th Cir. 2011)

(internal quotation marks and citation omitted). Because statutes

of limitations confer rights on defendants, district court judges

do not have the authority to extend such limitations periods either

directly or indirectly by providing additional time to re-file a

dismissed suit. Id. at 972.

Here, the ninety day filing requirements triggered by the

Notices dated November 18, 2014, and December 10, 2015, has long

since passed. Should this suit be dismissed without prejudice, the

reality is that it will be far too late for Plaintiff to file a new

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lawsuit at this point unless he can somehow persuasively argue that

the doctrine of equitable tolling should apply, which is highly

unlikely in these circumstances. As such, the Court agrees with

Defendant that a dismissal with prejudice is more appropriate than

a dismissal without prejudice in this particular instance. 

Although not mentioned by Defendant, “a plaintiff who moves

for dismissal without prejudice under Rule 41(a)(2) must be given

a reasonable opportunity to withdraw his motion in the event the

district court grants the motion but only with prejudice.” Marlow

v. Winston & Strawn, 19 F.3d 300, 305 (7th Cir. 1994). Thus, the

Court will allow Plaintiff to move to withdraw his motion should he

so choose. If Plaintiff does wish to proceed with this case, he

must be fully prepared to engage in active prosecution of it; any

additional delays or missed deadlines will be looked upon with

extreme disfavor. 

CONCLUSION 

For the reasons set forth above, the motion REMAINS UNDER

ADVISEMENT. Plaintiff is ORDERED to inform the Court, in writing

by July 18, 2017, whether he wishes to: (1) withdraw his motion to

dismiss, in which instance he must be prepared to immediately and

actively prosecute his case; or (2) proceed with voluntarily

dismissing his case, knowing that such dismissal will be with

prejudice. Plaintiff is CAUTIONED that if he does not respond by

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the deadline, this case will be dismissed with prejudice without

further warning. 

DATED: June 27, 2017 /s/RUDY LOZANO, Judge

United States District Court

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