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BEHRENS v. SILLIKER LABORATORIES

United States District Court, N.D. Illinois, Eastern Division


July 6, 2004.

DAWN L. BEHRENS, Plaintiff,
v.
SILLIKER LABORATORIES, INC., Defendant.

The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

REPORT AND RECOMMENDATION

This case originally came before the Court on Defendant's motion to compel production of documents. The motion was granted, but Plaintiff failed to respond. Plaintiff has also failed to appear for status hearings. For the following reasons, the Court finds that Plaintiff's case should be dismissed for want of prosecution.

  Plaintiff Dawn L. Behrens brought suit against Defendant Silliker Laboratories, Inc., alleging discrimination on the basis of disability in violation of the ADA and violation of ERISA. On June 8, 2004, Defendant filed a motion to compel, seeking an order compelling Plaintiff to respond to discovery requests that were over three months past due. The Court granted the motion on June 15, 2004, and ordered Plaintiff to respond within fourteen days. The Court informed Plaintiff in its order that a failure to respond may result in the dismissal of the lawsuit. Plaintiff failed to respond. On June 30, 2004, the Court held a status hearing and ascertained that Plaintiff had not responded to the outstanding discovery requests as ordered. Plaintiff has not appeared in court to oppose the motion to compel nor to attend court at status hearings. Under Federal Rule of Civil Procedure 41, the court may dismiss an action for failure of the plaintiff to prosecute or to comply with the rules or the court's orders. Dismissal of a case "is one of the tools available to district courts `to achieve the orderly and expeditious disposition of cases.'" Williams v. Chic. Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). However, because dismissal is such a harsh sanction, it "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.'" Id. (quoting Dunphy v. McKee, 134 F.3d 1297, 1299 (7th Cir. 1998) (citations omitted)).

  Plaintiff's actions cause us to reach the conclusion that this case should be dismissed for failure to prosecute. Plaintiff has failed to answer discovery as required, even after this Court entered an order that she must respond to the discovery. Plaintiff was warned that a failure to respond would result in the dismissal of the case. Plaintiff was delayed and directly disregarded this Court's order and has failed to attend status hearings. She has, by these omissions, indicated her disinterest in her case.

  Therefore, for the reasons discussed above, we recommend that Plaintiff's case be dismissed with prejudice for want of prosecution. Additionally, we recommend that Defendant's counterclaim be dismissed with prejudice.

20040706

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