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
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
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.
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 ...