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Jonathan andrew Willis v. John Williams

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


December 5, 2011

JONATHAN ANDREW WILLIS, PLAINTIFF,
v.
JOHN WILLIAMS, DEFENDANT.

The opinion of the court was delivered by: Michael M. Mihm United States District Judge

E-FILED

Monday, 05 December, 2011 11:21:47 AM

Clerk, U.S. District Court, ILCD

ORDER

This matter is now before the Court on Defendant's Motion to Dismiss [#63], Magistrate Judge Byron G. Cudmore's Report and Recommendation [#65], and Defendant's Motion for Extension of Time to Complete Discovery [#66]. For the following reasons, the Motion to Dismiss is GRANTED, the Report and Recommendation is ADOPTED in its entirety, and the Motion for Extension of Time to Complete Discovery [#66] is MOOT.

BACKGROUND

The Complaint [#1] was originally filed on January 22, 2010, but was stricken with leave to re-file as it was not signed by the pro se Plaintiff Jonathan Andrew Willis ("Plaintiff"). The Complaint [#3] was properly filed on May 13, 2010. Defendant John Williams ("Defendant") filed his Motion to Compel Plaintiff to answer Defendant's interrogatories and provide authorizations to obtain records on August 26, 2011. Plaintiff failed to adhere to or otherwise respond to Defendant's Motion to Compel. As such, on September 20, 2011, the Court directed Plaintiff to answer Defendant's interrogatories and provide authorizations to obtain records by October 3, 2011. At that time, Plaintiff was warned that failure to follow the Court's directions would result in the matter being dismissed.

Plaintiff did not file a responsive pleading or otherwise comply with the Court's Order and on October 4, 2011, Defendant filed his Motion to Dismiss [#63]. On October 26, 2011, Magistrate Judge Byron Cudmore entered a Report and Recommendation recommending that Defendant's Motion to Dismiss [#63] be allowed and that this matter be dismissed for want of prosecution. More than fourteen days elapsed since the filing of the Report & Recommendation, and no party has since served and filed a written objection to the Report. See 28 U.S.C. § 636 (b)(1)(C); FED. R. CIV. PRO. 72(b)(2); Local Rule 72.2(B). The Court notes that on November 23, 2011, the office of the Deputy Clerk for the Springfield Division received an email from Plaintiff which attempted to dispute his lack of prosecution. Even if Plaintiff's communication would have been submitted in the appropriate format, duly filed, and served upon Defendant Plaintiff's response would have nonetheless been untimely.

The Court concurs with the analysis of the Magistrate Judge and finds that Plaintiff has not taken the necessary steps to prosecute this case. A dismissal with prejudice for a plaintiff's failure to prosecute a case is appropriate when there is a clear record of delay or contumacious behavior, or when other sanctions have proved unavailing. 3 Penny Theater Corp. v. Plitt Theatres, Inc, 812 F.2d 337 (7th Cir. 1987). In this case, not only is there a record of delay, but Plaintiff has failed to properly object to the Report and Recommendation and failed to inform the Court of any steps he intends to take to pursue the claim.

CONCLUSION

It is therefore ORDERED that Defendant's Motion to Dismiss [#63] is GRANTED, this Court ADOPTS Magistrate Judge Byron Cudmore's Report and Recommendation [#65], and that Defendant's Motion for Extension of Time [#66] is MOOT. This matter shall be DISMISSED with prejudice for want of prosecution.

Michael M. Mihm

20111205

© 1992-2011 VersusLaw Inc.



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