The opinion of the court was delivered by: RICHARD MILLS, Senior District Judge
The Court now considers the Defendants' Motion for Dismissal
Pursuant to Federal Rule of Civil Procedure 41(b).
Plaintiff Robert Fleck has sued his former employer, the City
of Springfield, Illinois, and two of his former supervisors, John
Harris and Dan Hughes pursuant to 42 U.S.C. § 1983. On June 8,
2004, the Court entered a scheduling order requiring the parties
to make initial disclosures by July 15, 2004. The Defendants satisfied their
obligations by that date.
Plaintiff failed to timely submit his discovery disclosures.
Thus, on August 23, 2004, the Defendants sent Plaintiff's counsel
a letter asking him to contact them about the discovery issue.
The letter was placed in a file and counsel never read it. The
Defendants then telephoned counsel and asked him to call them to
discuss the discovery matter. Due to the press of business or an
oversight, counsel did not return the Defendants' call.
On July 7, 2005, the Defendants moved the Court to dismiss
Plaintiff's case pursuant to Federal Rule of Civil Procedure
41(b). Plaintiff's attorney has since tendered his discovery
disclosures to the Defendants.
Federal Rule of Civil Procedure 41(b) allows a defendant to
move for dismissal of a case or claim against it when a plaintiff
fails to prosecute or to comply with "any order of court. . . ."
See id. The cases interpreting this Rule require the moving party to show either "a
clear record of delay or contumacious conduct" or that "other
less drastic sanctions have proven unavailing." See Williams
v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998);
see also Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir.
2003). "[C]onsidering the severe and punitive nature of dismissal
as a discovery sanction, a court must have clear and convincing
evidence of willfulness, bad faith or fault before dismissing a
In the instant case, Plaintiff's counsel did not comply with
the Court's discovery order. He also failed to respond to the
Defendants' letter and phone call. While the Court does not
condone this conduct, it is obvious that one missed
correspondence and one neglected phone call do not establish
clear and convincing of willfulness, bad faith or fault. If
counsel's actions satisfied that standard, the Defendants surely
would have a cited a case to that effect. The Defendants have not
done so.*fn1 Moreover, the Court has not found a single case that would
support dismissal under these circumstances.
Ergo, the Defendants' Motion for Dismissal Pursuant to
Federal Rule of Civil Procedure 41(b) (d/e 18) is DENIED.
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