United States District Court, N.D. Illinois, Eastern Division
July 6, 2004.
DAWN L. BEHRENS, Plaintiff,
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
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.
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