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PEARLE VISION, INC. v. ROMM

September 1, 2005.

PEARLE VISION, INC., a Delaware Corporation, and PEARLE, INC., a Delaware Corporation, Plaintiff,
v.
VICTOR ROMM, individually, VICTOR ROMM d/b/a ROMM & COMPANY, INC., VICTOR ROMM d/b/a ROMM VISION ENTERPRISES, INC., VICTOR ROMM d/b/a EYES 2000 LTD., ROMM & COMPANY, INC., an Illinois Corporation, ROMM VISION ENTERPRISES, INC., an Illinois Corporation, and EYES 2000 LTD., an Illinois Corporation, Defendants.



The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge

MEMORANDUM OPINION AND ORDER

Pearle Vision, Inc. and Pearle, Inc., (together, "Pearle Vision") move for dismissal of defendants' Counterclaim for want of prosecution and an order of default in favor of Pearle Vision under Local Rule 41.1. For the following reasons, the court finds that defendants' counterclaim should be dismissed.

Pearle Vision filed suit to terminate four Pearle Vision franchises and to recover the lease premises. Defendants counterclaimed, alleging, in general that their franchises were wrongfully terminated. On September 30, 2004, this court granted the Emergency Motion of Pearle Vision, Inc. and Pearle, Inc. for a Preliminary Injunction which, among other things, awarded Pearle Vision immediate possession of the premises upon which defendants operated their franchises and instructed defendants not to infringe upon Pearle Vision's trademarks or otherwise hold themselves out as a present or former franchisee of Pearle Vision.

  On February 15, 2005, defendants' attorneys were granted leave to withdraw for lack of cooperation. In the Order granting them leave, the court directed defendant Romm to appear individually with new counsel for the corporate entities for the next status hearing, which was set for March 8, 2005. Romm failed to appear for that status hearing, however, and no counsel appeared on behalf of the corporate entities. The court set the next status hearing for March 29, 2005.

  On March 29, 2005, Romm appeared and informed the court that he planned to retain a new attorney. The court set the next status hearing for April 18, 2005 and warned Romm that he should retain a new attorney by that date. Despite the court's warning, on April 18, 2005, Romm once again failed to appear for a scheduled status hearing and no counsel filed an appearance on his behalf or on behalf of any of the corporate entities. The court set another status hearing for May 17, 2005.

  On May 13, 2005, Pearle Vision filed their Motion for Dismissal for Want of Prosecution and Order of Default. On May 17, 2005, Pearle Vision also filed a Motion for Summary Judgment. At the May 17, 2005 status hearing, the court entered a briefing schedule on the Motions allowing defendants until June 16, 2005 to file responses. Defendants failed to file a response by June 16, 2005.

  Instead, on June 23, 2005, a full week after the court's stated deadline for filing responses, Gregory J. Ellis filed an appearance on behalf of Romm and the corporate entities and filed a motion for an extension of time to respond to the Motions. On July 13, 2005, the court entered another briefing schedule on the Motions allowing defendants until July 27, 2005 to file and serve responses to the Motions and allowing Pearle Vision until August 10, 2005 to file replies. Again, defendants failed to file a response.

  Thus, on August 24, 2005, the court ordered defendants to respond by August 30, 2005, to the Motions or suffer dismissal of their counterclaim. Defendants still failed to respond.

  Under Federal Rule of Civil Procedure 41 and Northern District of Illinois Local Rule 41.1, the court may dismiss an action or counterclaim for failure to prosecute or to comply with the rules of 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, 82 S.Ct. 1386, 1389 (1962)). 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)).

  Defendants' conduct compels this court to reach the conclusion that their counterclaim should be dismissed for failure to prosecute. Defendants have failed to appear for status hearings or to respond to Pearle Vision's dispositive motions even after the court twice extended defendants' time for filing responses. While a new attorney ultimately filed an appearance on behalf of Romm and the corporate defendants, the attorney has done nothing further to prosecute defendants' counterclaim. Defendants were warned that a failure to respond would result in the dismissal of their counterclaim. Defendants have delayed and flagrantly disregarded this court's orders and have, by these actions, demonstrated their disinterest in their case.

  Therefore, for the reasons discussed above, we order defendants' case dismissed with prejudice.

  CONCLUSION

  For the reasons stated above, Pearle Vision's Motion for Dismissal for Want of Prosecution (#52) is granted. MEMORANDUM OPINION AND ORDER

  Plaintiffs, Pearle Vision, Inc. and Pearle, Inc. (together, "Pearle Vision"), allege in Counts I-VIII of their nine-count Second Amended Complaint that defendants, Victor Romm ("Romm"), individually, Victor Romm d/b/a Romm Vision Enterprises, Inc., Victor Romm d/b/a Eyes 2000, Ltd., Romm & Company, Inc., Romm Vision Enterprises, Inc., and Eyes 2000, Ltd., breached four Franchise Agreements under which they franchised Pearle Vision optical stores thereby forfeiting their rights to operate the franchises or to occupy the premises upon which they are located. Count IX, which is not a subject of this motion, alleges a violation of the Lanham Act (15 U.S.C. §§ 1051-1127) and the common law of the State of Illinois due to defendants' unauthorized use of the "Pearle" and "Pearle Vision" names and marks. Pearle Vision moves for summary judgment on Counts I-VIII. For the reasons stated below, the motion is granted.

  Pearle Vision also moves for summary judgment on defendants' counterclaim which alleges, in general, that their franchises were wrongfully terminated. Since the court orders dismissal of defendants' counterclaim for want of prosecution in a companion order entered today, the court need not ...


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