UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

AMERICAN UNITED LIFE )

INSURANCE COMPANY, )

Plaintiff, )

)

v. ) CAUSE NO. 2:13-CV-220-JVB-JEM

)

STEVEN GREER, et al., ) 

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 Defendants Juanita Estes, Melinda Wade,

and Donita Warmack to appear at the Show Cause Hearing of August 21, 2014, at 10:30 a.m., and

at the Rule 16 Pretrial Conference of July 10, 2014, at 11:00 a.m. 

On May 12, 2014, by written Order, the Court set this matter for a Pretrial Conference on

July 10, 2014, at 11:00 a.m. Defendants Juanita Estes, Melinda Wade, and Donita Warmack failed

to appear without explanation, so the Court issued a Show Cause Order and set a hearing to inquire

into their failure to appear, to be held on August 21, 2014, at 10:30 a.m. The Show Cause Order 

warned them that their failure to appear at the show cause hearing could result in sanctions,

including dismissal from the case. The docket reflects that the Show Cause Order was mailed to the

parties and that Defendants Juanita Estes, Melinda Wade, and Donita Warmack received the Order

[DE78, 79, 81]. Defendants Juanita Estes, Melinda Wade, and Donita Warmack did not appear at

the Show Cause Hearing of August 21, 2014, and have not responded in any way 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 Defendants Juanita Estes, Melinda Wade, and Donita Warmack, this

case presents one of those “extreme situations.” Gabriel, 514 F.3d at 736. Defendants Juanita Estes,

Melinda Wade, and Donita Warmack failed to appear at the preliminary pretrial conference and at

the subsequent show cause hearing. The Court also finds that proper warning has been given to

Defendants Juanita Estes, Melinda Wade, and Donita Warmack. 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, Defendants Juanita Estes, Melinda Wade,

and Donita Warmack received “due warning” in a formal 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.

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

District Court DISMISS Defendants Juanita Estes, Melinda Wade, and Donita Warmack from

the 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 fourteen (14) days after being served with

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

2
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 21st day of August, 2014.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN 

UNITED STATES DISTRICT COURT 

cc: Judge Joseph S. Van Bokkelen

All counsel of record 

Defendants Juanita Estes, Melinda Wade, and Donita Warmack 

pro se, by first class and certified mail