warning in every case”).

Inconsidering such a dismissal, a district court should consider numerous factors, including:
the frequency and magnitude of the plaintiff's conduct, the prejudice to the defendant, the disruption
to the orderly administration of the court's calendar, and the merits of the underlying litigation. See
Bolt y. Loy, 227 F.3d 854, 856 (7th Cir. 2000); Ball, 2 F.3d at 759-60.

Given this history of dilatory conduct by the Plaintiff, as evidenced in the record and
Defendant’s motion, this case presents one of those “extreme situations, when there js a clear record
of delay.” Kruger, 214 F.3d at 787. Over one and one-hal years from the inception of this litigation,
and after repeated informal and formal attempts, Plaintiff has yet to fulfill her obligation to fully
respond to Defendant's discovery requests, complete her Initial Disclosures and complete her
deposition. The Defendant has done its part to move this litigation along, both informally and
formally (as evidenced by the half-dozen motions to compel or dismiss for want of prosecution).

In opposition to the present motion, Plaintiff offers three arguments. First, Plaintiff argues
that she has not been given proper warning. Second, Plaintiff argues that lesser severe sanctions
should be considered. Third, Plaintiff argues that her claim is meritorious and that she has “smoking
gun” evidence of Defendant's liability.

First, Plaintiff has received proper warning. In Ball, the Seventh Circuit indicated that
district courts should provide “due warning” to plaintiffs before dismissing a case for want of
prosecution. See Ball, 2 F.3d at 755. In elucidating the terms “due warning,” the Seventh Circuit
stated: “‘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.” Id, (internal citations omitted).

The word “dismissal” need not be recited by the district court’s “due warning.” See Williams, 155



On October 23, 2003, Defendant filed the present motion, its Third Motion to Dismiss for
Want of Prosecution [23-1] brought pursuant to Federal Rule of Civil Procedure 41(b) and Northern
District of Minois Local Rule 41.1." In that motion, Defendant chronicles the Plaintiff's failure to
comply with repeated court orders pertaining to the discovery schedule (as outlined above) and the
Defendant's informal communications with Plaintiffin efforts to move this case along. Ofparticular
relevance to the present motion are Defendant’s attachments chronicling the nine re-notices of
Plaintiff’ s deposition, all of which were caused to be re-noticed by the Plaintiff's repeated failure to
provide written discovery to the Defendant. Se¢ Def.’s Mot. to Dismiss, Ex. C.D, £, F, G,H, 1, J,
K, 1, M,N, and O.

IL. DISCUSSION

Federal Rule of Civil Procedure 41(b) provides: “For failure of the plaintiff to prosecute or
to comply with these rules or any order of the cour, a defendant may move for dismissal of an action
or of any claim against the defendant.” A district court is permitted to dismiss a suit where a plaintiff

is failing to prosecute it. See, e.g., Williams v. Chicago Board of Educ., 155 F.3d 853, 857 (7th Cir.

1998) (per curiam). However, dismissal for failure to prosecute is “an extremely 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.” Kruger v. Apfel, 214 F.3d
784, 787 (7th Cir. 2000) (per curiam), Further, in most cases, the district court should warm the
plaintiff that such a sanction may be imposed. See Williams, 155 F.3d at 857 and n. 4; sec also Ball

y. City of Chigago, 2 F.3d 752, 759-60 (7th Cir. 1993) (indicating that “|t]here should be an explicit

One week later, the Defendant also filed its ‘Uhird Motion to Compel Plaintil?s Compliance with Written
and Oral Discovery [27-1].


F.3d at 858. Further, the district court need not directly inform the litigant. See Ball, 2 F.3d at 756,
Tn this case, Plaintiff has received “duc warning” in many forms. Defendant’s three motions to
dismiss for want of prosecution all specifically requested dismissal, citing Federal Rule of Civil
Procedute 41(b) and applicable case law on the subject. Additionally, at numerous status hearings,
the Court repeatedly admonished Plaintiff and her attorney of the consequences of further dilatory
conduct. Specifically, on September 30, 2003, the Court admonished Plaintiff for her dilatory
conduct and stated that if such conduct continued it would seriously consider dismissing the case for
want of prosecution. Thus, in this case, Plaintiff has received explicit warnings.

Second, less severe sanctions are not warranted in light of Plaintifl’s utter disregard for the
discovery deadlines set by the Court, as well as Defendant’s repeated informal and formal atlempis
to obtain discovery. Lesser sanctions in this case would not be “‘just’, that is, proportionate to the
circumstatices surrounding {Plaintiff's] failure to comply with discovery rules.” Compare Melendez

y. Illinois Bell Tel. Co., 79 F.3d 661, 672 (7th Cir. 1996). In light of the Court’s denials of

Defendant’s other motions to dismiss for want of prosecution, which would have allowed Plaintifé
to amend her dilatory behavior and procced to the merits of the case, Plaintiff has not taken
advantage of these opportunities. Further, this is not a case where it is the plaintiff's lawyer who is
solely responsible for the delay and disobedience of court orders. Plaintiff's motion, prepared by
Plaintiff's counsel, indicates that even he has had difficulty contacting Plaintiff. It is the burden of
Plaintiff to move this case along (o a just and fair conclusion, and where she fails to do that by not
responding (o Defendant's requests for discovery or to her own attorney's attempts to contact her,
dismissal for want of prosecution is warranted. Thus, this case is not one in which the Court should

consider punishing the lawyer as opposed to the litigant. See Ball, 2 F.3d at 757-58 (discussing the


Monte Order Horm (0607)

United States District Court, Northern District of HWlinois

[— —
Name of Assigned Judge Charles R. Norgle Sitting Judge if Other
or Magistrate Judge " than Assigned Judge
CASE NUMBER 02 C 2549 DATE 12/17/2003
CASE Patterson vs. University of Chicago
TITLE

{ln the following box (a) indicute the party filing the motion.¢.g.. plaintiff. detendant. 3rd party plaintiff, and (b) slate briefly the nature
of Ure motion being presented]

MOTION:
Defendant’s Third Motion to Dismiss for Want of Prosecution
DOCKET ENTRY:
q) o Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due __
(3) im Answer brief to motion due____.. Reply to answer brief due__
(4) im Ruling/Hearing on ss set for at
(5) oO Status hearing[held/continued to] [set for/re-set for] on ___set for_ at
(6) o Pretrial conference(held/continued to] [set for/re-set for}on ____ssetfor_ at
(7) im Trial[set for/re-set for]on_ at.
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case js dismissed with prejudice and without costs
ao it [Other docket entry) Defendant’s Third Motion to Dismiss for Want of Prosecution [23-1] is

granted. See attached. Case terminated.

ial

ai) @ [For further detail sce order attached to the original minute order.]

No nolices required, advised in open court, Document

Number

9

No notices required.

— ruber of notices

Notices mailed by judge's staff.

|_| DEC 18 ama

ified couns
Notified counsel by telephone vioaneked

X | Dockcting to mail notices.

Mail AO 450 form, docketingeyity initials

Copy 10 judgcimagistrate judge juned Lowisia sn
et
courtroam:
deputy's rae ara h es,
initials Me an
Date/time received in
central Clerk's Ottice nai deputy ints



propriety of dismissing a suit because of delays and omissions committed solely by the plaintiff's
lawyer).

Lastly, Plaintiff's argument that she has “smoking gun” evidence of Defendant ’s liability is
but one element in the calculus of whether to grant (he motion to dismiss for want of prosecution,
See Bolt, 227 F.3d at 856 (indicating in weighing the factors for and against dismissal for want of
prosecution, “the touchstone is proportionality”). Accepting Plaintiff's argument, this element is
outweighed by Plaintiff's repeated disregard for her discovery obligations, the prejudice to the
Defendant in terms of litigation costs, and the disruption to this Court’s calendar caused by excessive
judicial intervention in discovery. “The court must sct prescribed times, dates, and deadlines, and
the attorneys [and Litigants | must respect and comply with these deadlines, which need to be enforced
if the court is going to properly manage its calendar.” Rice v. City of Chicago, 333 F.3d 780, 785
(7th Cir, 2003).

TLL CONCLUSION

For the foregoing reasons, Defendant’s Third Motion to Dismiss for Want of Prosecution is
granted.

IT IS SO ORDERED.

ENTER:

CHARLES RONALD NORGLE, Jud
United States District Court
DATED: fy oF



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DOCKETED

Briony Patterson, ) ‘
) DEC'1 8 2003
Plaintiff, )
)
v. ) Case No. 02 C 2549
) Honorable Charles R. Norgle
)
The University of Chicago, )
)
Defendant. »)
OPINION AND ORDER

CHARLES R. NORGLE, District Judge:

Before the Court is Defendant’s Third Motion to Dismiss for Want of Prosecution. For
the following reasons, the motion is granted.

I, BACKGROUND

The decision whether to grant a motion to dismiss for want of prosecution is committed to
the district court’s discretion. The record shows, as argued by Defendant in its Third Motion to
Dismiss for Want of Prosecution, a history of dilatory conduct by the Plaintiff.

On April 9, 2002, Plaintiff filed her complaint |] -1]. The matter was dismissed on July 24,
2002 for failure to serve Defendant, See Minute Order of July 24, 2002 [2-1]. Thereafter, Plaintiff
filed a motion to vacate the dismissal [3-1], which the Court granted, See Minute Order of August
8, 2002 [4-1]. From there the discovery difficulties, which have plagued this litigation, began.'

In December 2002, the Court entered a discovery schedule, ordering that all discovery be

completed by June 30, 2003. See Minute Order of December 4, 2002 [11-1]. On April 1, 2003,

. ‘It is worthy of note that Defendant has continued to attempt to resolve discovery disputes informally prior
to seeking the Court’s intervention. See Northern District Of Mlinois local Rule 37.2.



Defendant filed a Motion to Dismiss for Want of Prosecution [12-1] or, in the alternative, to Compel
Plaintiff's Initial Disclosure and Discovery Responses |12-2]. After an agreement reached in open
court between the parties, the Court denied the Motion to Dismiss for Want of Prosecution, and
denied as moot the Motion to Compel Plaintiff's Initial Disclosure and Discovery Responses. See
Minute Order of April 4, 2003 [13-1]. Between that court appearance and May 14, 2003, the
apparent agrecment broke down and Defendant filed a Renewed Motion to Compel Plaintiff's Initial
Disclosure and Discovery Responses [14-1]. The Court took that motion under advisement and
continued the matter unti] June 19, 2003, allowing the parties to submit an Agreed Order to adjust
the discovery schedule, See Minute Order of May 16, 2003 [16-1]. At the June 19, 2003 hearing,
the Court entered a revised discovery schedule, ordering Plaintiff to comply with all outstanding
discovery requests by July 2, 2003, Plaintiff's deposition to be taken before July 31,2002, and expert
depositions to be taken before August 6, 2003. See Minute Order of June 19, 2003 [18-1].

Once again, however, Plaintiff failed to meet that obligation and Defendant filed a Renewed
Motion to Dismiss for Want of Prosecution [20-1] or, in the alternative, (Second Renewed) Motion
{o Compel Plaintiff's Initial Disclosure, Discovery Responses and Plaintiff's Deposition [20-2].
After another agreement reached in open court between the parties, the Court denied the Renewed
Motion to Dismiss for Want of Prosecution, and denied as moot the (Second Renewed) Motion to
Compel Plaintiff’s Initial Disclosure, Discovery Responses and Plaintiff's Deposition. Sce Minute
Order of August 29, 2003 [21-1]. ln what now had become a pattern, Plaintiff failed to meet that
obligation, and the Court extended the time for Plaintiff to comply with all discovery requests to
October 14, 2003 and ordered that Plaintiff's deposition to be taken before October 16, 2003. See

Minute Order of September 30, 2003 [22-1]. Yet again, Plaintiff failed to meet that obligation.