UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CARLOS MARTINEZ, JR. and )

RENEE MARTINEZ, )

)

Plaintiffs, ) 

)

v. ) No: 2:15 CV 35

)

COUNTY OF PORTER, INDIANA, )

et al., )

)

Defendants. )

OPINION and ORDER

I. BACKGROUND

This matter is before the court on defendant’s motion to dismiss. (DE # 23.) On

January 7, 2016, defendants propounded their first set of interrogatories and first

request for production of documents upon plaintiffs. (DE # 22.) Despite some

communication between plaintiffs’ and defendants’ counsel that occurred through April

25, 2016, plaintiffs did not provide any responses to the discovery requests. (Id.)

Defendants then moved to compel plaintiffs’ responses to the first set of interrogatories

and first request for production of documents on April 26, 2016. (DE # 21.) Plaintiffs did

not respond to the motion. The court granted the motion to compel and ordered

plaintiffs to serve their discovery responses on or before May 31, 2016. (DE # 22.) The

court also ordered plaintiffs to file, on or before that same date, a brief setting forth why

the court should not order plaintiffs to pay defendants’ reasonable fees incurred in

bringing the motion to compel. (Id.) 
In the six months since, plaintiffs have failed to comply with the court’s order.

Plaintiffs have not filed a brief with the court regarding fees. Furthermore, defendants

assert that plaintiffs have not responded to the discovery requests, as required by the

order. (DE # 23 ¶ 3.) 

On June 30, 2016, defendants filed a motion to dismiss plaintiffs’ complaint

pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (DE # 23.) Defendants

argue that plaintiffs inaction has triggered two prongs of Rule 41(b): the failure to

prosecute and the failure to comply with a court order. (DE # 24 at 2.) Plaintiffs have

not responded to the motion to dismiss, and have not filed anything with the court

since defendants filed the motion to compel.

II. LEGAL STANDARD

According to Rule 41(b), “[i]f the plaintiff fails to prosecute or to comply with

these rules or a court order, a defendant may move to dismiss the action or any claim

against it.” Fed. R. Civ. P. 41(b). However, dismissal for want of prosecution 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 where other less drastic

sanctions have proven unavailing.” Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 561 (7th

Cir. 2011). Nevertheless, the court is not required to impose graduated sanctions before

dismissing a case for failure to prosecute. Ball v. City of Chicago, 2 F.3d 752, 756 (7th Cir.

1993). Additionally, the Seventh Circuit has suggested a number of factors that are

relevant to the court’s decision under Rule 41(b): “the frequency of the plaintiff’s failure

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to comply with deadlines; whether the responsibility for mistakes is attributable to the

plaintiff herself or to the plaintiff’s lawyer; the effect of the mistakes on the judge’s

calendar; the prejudice that the delay caused to the defendant; the merit of the suit; and

the consequences of dismissal for the social objectives that the litigation represents.”

Kasalo, 656 F.3d at 561.

III. DISCUSSION

First, plaintiffs have repeatedly failed to comply with deadlines. Plaintiffs failed

to comply with initial discovery deadlines, and then, once the court issued specific

deadlines in its order on the motion to compel, plaintiffs failed to comply with those

deadlines as well.

Second, the responsibility for the mistakes is attributable to plaintiffs themselves

rather than their attorneys. As defendants outlined in their motion to compel and its

supporting documentation, plaintiffs’ counsel repeatedly contacted defendants’ counsel

and explained that his clients had not been responsive and were failing to deliver the

promised discovery responses. (See DE ## 21 ¶¶ 3, 5, 6, 9, 15; 21-2, 21-4; 21-5; 21-8; 21-

14.)

Third, this delay has had a detrimental effect on the court’s calendar. The court

has entertained multiple motions for extension of time to complete discovery and has

extended discovery deadlines on several occasions, due to plaintiffs’ delay. (See, e.g., DE

## 17, 18, 19, 20.)

Fourth, plaintiffs have also caused prejudice to defendants. As the Seventh

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Circuit has recognized, prejudice may arise from the mere continued existence of the

suit, by tying up a defendant’s time and prolonging uncertainty and anxiety. Ball, 2 F.3d

752 at 759. This type of prejudice “is an important consideration in the choice of

sanctions.” Id. Furthermore, plaintiffs’ inactivity has forced defendants to allocate time

and resources to the drafting and filing of a motion to compel and multiple motions for

extensions of discovery deadlines.

Lastly, whether or not the case carries any merit or social objective, such

considerations are outweighed by the above factors along with plaintiffs’ own

abandonment of the case. The failure of plaintiffs to take any action over the past six

months, even in light of a court order requiring such action, necessitates a harsh

sanction. Given the above analysis, the court finds that the factors under Rule 41(b)

weigh heavily in favor of dismissal.

The court also notes that the Seventh Circuit has held that there should be an

explicit warning provided to a plaintiff before his case is dismissed for failure to

prosecute. See Ball, 2 F.3d at 755. Yet, the Seventh Circuit has also held that this

“warning requirement” is, in fact, “not a rigid rule” but was instead intended as “a

useful guideline to district judges.” Kasalo, 656 F.3d at 562 (internal quotation marks

omitted); Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 666 (7th Cir. 2006) (“The

purpose of requiring a warning is not to entrap district judges, but to make sure that the

plaintiff is warned.”). The court has not issued such an explicit warning prior to this

order. However, the warning need not always come directly from the court. Id.

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Plaintiffs were put on notice that their case could be dismissed for failure to prosecute

when defendants filed their motion to dismiss. See id. (finding warning given to plaintiff

was adequate due to multiple factors, but placing “particular emphasis” on defendant’s

motion which requested dismissal for failure to comply with discovery deadlines).

Despite that notice, plaintiffs failed to respond to the motion.

IV. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss (DE # 23) is

GRANTED and it is hereby ORDERED that this action is DISMISSED WITH

PREJUDICE for failure to prosecute.

SO ORDERED.

Date: November 30, 2016

s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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