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Foodworks Usa, Inc v. Foodworks of Arlington Heights

August 14, 2012


The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan


On June 5, 2012, Defendant filed a Motion for Involuntary Dismissal for Failure to Prosecute, for Sanctions, and Other Relief. Defendant requests that the Court: (1) involuntarily dismiss Plaintiff's complaint with prejudice pursuant to Rule 41(b) for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, and failure to comply with Court orders; (2) sanction Plaintiff and its counsel for their repeated failures to respond to written discovery without substantial justification, and grant as a sanction any and all relief as Rule 37(b) and (d) permit, including awarding attorneys' fees; and (3) granting any and all other relief as the Court sees fit or that justice requires. Plaintiff has not filed a response. For the reasons stated below, the Motion is granted in part and denied in part.


Defendant operates a Mexican-themed restaurant in Arlington Heights, Illinois, known as the Fuego Mexican Grill and Margarita Bar. Plaintiff's Complaint and Defendant's Counterclaim deal with intellectual property issues relative to the name of the restaurant and the trade dress used at the restaurant. Plaintiff's Complaint seeks relief under the Lanham Act for trademark infringement and dilution for what is identified as Plaintiff's registered, stylized servicemark. Plaintiff also seeks relief under the Illinois Deceptive Trade Practices Act, 815 ILCS § 510/2, and for common law breach of contract. Defendant's counterclaim seeks a declaratory judgment that Defendant is the owner of the trademark and the trade dress. Defendant also seeks relief under the Lanham Act for trade dress infringement and dilution. Defendant also seeks to cancel the registration of the trademark obtained by Plaintiff, damages for fraudulent or false representation under the Lanham Act, and relief for common law conversion. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c).

On March 21, 2011, Plaintiff's counsel filed a Motion to Withdraw as attorney for Plaintiff. (Doc. 39.) On April 6, 2011, the Court granted the motion and continued the matter so that Plaintiff could obtain new counsel. (Docs. 41, 44.) On May 18, 2011, Ayad Nahlawi, Plaintiff's principal owner, personally appeared and advised the Court that Plaintiff had not yet obtained new counsel. (Doc. 43.) Nahlawi was given until July 13, 2011, to retain new counsel and admonished that if he failed to do so his claims could be subject to involuntary dismissal and Defendant's claims given a default judgment. (Id.)

On July 12, 2011, Defendant filed a Motion to Dismiss for Want of Prosecution and a Motion for Default Judgment. (Docs. 46, 47.) On July 13, 2011, Nahlawi again appeared without counsel. (Doc. 49.) Over Defendant's objections, both pending motions were entered and continued until August 9, 2011. (Id.) On August 8, 2011, over four months after Plaintiff's counsel moved to withdraw, new counsel sought leave to appear on behalf of Defendant, which was granted. (Docs. 51, 53.) In light of Plaintiff's newly retained counsel, the Court struck Defendants' motion to dismiss and motion for default judgment. (Doc. 55.)

After settlement discussions and a November 9, 2011 settlement conference were unsuccessful, the Court directed the parties to begin discovery and provide the Court with an agreed discovery schedule within 14 days. (Docs. 54, 64.) Later that same day, Defendant sent Plaintiff's new counsel the Interrogatories and Requests to Produce that had been previously served on Plaintiff's prior counsel almost seven months prior. (Mot. ¶ 8, Exs. A--D.) On December 6, 2011, the Court entered a discovery schedule: all written discovery to be completed by February 29, 2012, and oral discovery by June 1, 2012. (Doc. 65.)

At the January 26, 2012 status hearing, Plaintiff's counsel assured the Court that his client's discovery requests would be forthcoming as well as its responses to Defendant's discovery requests. (Doc. 66; Mot. ¶ 10.) The Court advised the parties that if Plaintiff did not timely respond to Defendant's discovery requests, Defendant was granted leave to file a motion to compel pursuant to Rule 37. (Mot. ¶ 10.) When Plaintiff had failed to either respond to the discovery requests or propound discovery by February 27, 2012, Defendant filed its Rule 37 Motion to Compel. (Doc. 67.) On March, 5, 2012, Plaintiff filed its response to the motion to compel, asserting that it could not respond to the discovery requests because counsel was busy handling other matters for Plaintiff. (Doc. 72.) Plaintiff also represented that "outstanding discovery will be forthcoming within ten (10) to fourteen (14) days, if not sooner." (Id. ¶ 5.) Plaintiff also assured the Court that it was "finalizing its own written discovery requests" to serve on Defendant within the same 10--14 day period. (Id. ¶ 6.) However, the 14-day period elapsed with no responses to written discovery produced or discovery requests issued. Instead, at a status hearing on April 3, 2012, Plaintiff requested an additional seven days to comply. (Doc. 78.)

Plaintiff still failed to comply with Court-imposed deadlines. On April 10, 2012, Plaintiff requested additional time, which the Court granted to and including April 17, 2012. (Docs. 79, 81.) At a status hearing on April 24, 2012, Plaintiff requested another extension. (Doc. 82.) The Court granted Plaintiff until April 30, 2012, at 5:00 p.m. to respond to Defendant's written discovery and until May 7, 2012, at 5:00 p.m. to serve Defendant with Plaintiff's discovery requests. (Id.) The Court warned Plaintiff that "absent exigent circumstances, no further extensions will be granted." (Id.)

Shortly after 5:00 p.m. on April 30, 2012, Plaintiff's counsel sent two email messages to Defendant's counsel. (Mot. ¶ 20.) The first email contained 13 files totaling 13 pages that were purportedly responsive to Defendant's document request. (Id. Ex. F.) The email indicated that other responsive documents would be forthcoming. (Id.) The second email contained answers to Defendant's interrogatories. (Id. Ex. G.) On May 7, 2012, Plaintiff emailed its discovery requests to Defendant, but no further documents were produced. (Id. ¶ 22, Ex. H.) Finally, on May 11, 2012, eleven days beyond the deadline that was not to be missed absent exigent circumstances, Plaintiff served Defendant with a CD containing documents in response to Defendant's document request. (Id. ¶ 23, Ex. I.)

However, at the May 15, 2012 status hearing, Defendant notified the Court of the many deficiencies in Plaintiff's production. (Mot. ¶ 23.) After reviewing the deficiencies with the parties, the Court granted Defendant until June 5, 2012 to file the instant motion to dismiss for failure to prosecute. (Doc. 84.) Plaintiff's was given until June 26, 2012, to file a response. (Id.) In its order setting the briefing schedule, the Court warned Plaintiff that "the failure to file a response, or a failure to file it within the deadline, may be deemed consent to the granting of the motion." (Id.) On June 29, 2012, the Court granted Plaintiff's request for additional time to respond to the Motion and extended the due date until July 17, 2012. (Docs. 87, 89.) To date, however, no response has been filed. (See Doc. 91 (Court's July 25, 2012 Order noting that Plaintiff never filed its response).)


It is well established that federal district courts have the authority "to dismiss a plaintiff's action with prejudice because of his failure to prosecute." Link v. Wabash R.R., 370 U.S. 626, 629 (1962). The authority has been expressly recognized in Fed. R. Civ. P. 41(b), which provides:

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this ...

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