The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARLISE BOYER, )
)
Plaintiff, )
)
vs. ) Case No. 19-CV-61-SMY
)
KROGER LIMITED PARTNERSHIP, )
)
Defendant. )
ORDER
YANDLE, District Judge:
Plaintiff Marlise Boyer filed a pro se Complaint on January 18, 2019 asserting sexual
harassment and retaliation claims under Title VII (Doc. 1). Defendant Kroger Limited Partnership
(“Kroger”) was served and filed timely filed an Answer on May 31, 2019 (Doc. 15). On August
20, 2019, Boyer failed to appear for a telephonic Rule 26(f) scheduling conference before
Magistrate Judge Mark A. Beatty. She also failed to appear for a subsequent telephonic scheduling
conference held on September 20, 2019, notice of which was sent to her by certified mail. Boyer
did not notify the Court of her inability to attend the conferences and has provided no excuse or
explanation for her failure to appear.
Pending before the Court is Defendant Kroger’s Motion to Dismiss for Lack of Prosecution
(Doc. 24). In the Motion, Kroger asserts that it attempted to contact Boyer on five occasions at
her address of record (her email address) and an address gleaned from other litigation, but she
failed to respond. On the sixth occasion, Boyer did respond to an email but did not attempt to
coordinate the Rule 26(f) conference with Kroger. Boyer has not responded to the Motion or to
requests for admission served on August 23, 2019 (Doc. 25).
In light of Boyer’s lack of response to the Motion, the undersigned issued an Order to Show
Cause why this case should not be dismissed for failure to prosecute on November 4, 2019 (Doc.
29). The deadline to respond was November 18, 2019. As of the date of this Order, no response
has been filed. Instead, Boyer filed a Notice of Settlement Offer, stating that she sent a settlement
offer to Defendants on November 19, 2019 (Doc 32).
Discussion
Federal Rule of Civil Procedure 41(b) provides for the involuntary dismissal of an action
for failure to prosecute or to comply with court orders. Under the Rule, an action may be dismissed
“when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions
have proven unavailing.” Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003) (quoting Williams
v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (other citations omitted). Although
there is no requirement of graduated sanctions prior to dismissal, the Court must provide an explicit
warning before a case is dismissed. Aura Lamp & Lighting Inc. v. International Trading Corp.,
325 F.3d 903, 908 (7th Cir. 2003) (citing Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993)).
Dismissal is the most severe sanction that a court may apply; as such, its use must be
tempered by a careful exercise of judicial discretion. Webber v. Eye Corp., 721 F.2d 1067, 1069
(7th Cir. 1983). In that vein, the Seventh Circuit has identified several factors a court should
consider before entering an involuntary dismissal order, including:
the frequency of the plaintiff’s failure to comply with deadlines; whether the
responsibility for mistakes is attributable to the plaintiff herself or to the plaintiff’s
lawyer; the effect of the mistakes on the judge’s calendar; the prejudice that the
delay caused to the defendant; the merit of the suit; and the consequences of
dismissal for the social objectives that the litigation represents. Aura Lamp &
Lighting Inc., 325 F.3d at 908.
A case may also be dismissed under F.R.C.P. 37 if a court finds “willfulness, bad faith or fault on
the part of the defaulting party.” Brown v. Columbia Sussex Corp., 664 F.3d 182, 190 (7th Cir.
2011). However, the sanction of dismissal must be “proportionate to the circumstances.” Collins
v. Illinois, 554 F.3d 693, 696 (7th Cir. 2009).
Dismissal is clearly warranted in this case. Boyer failed to appear at two scheduling
conferences, despite being provided adequate notice of the same. She failed to notify the Court of
her inability to attend or to provide an excuse regarding her failure to attend. Boyer also failed to
respond to a Motion to Dismiss, which the Court construes as an admission of the merits of the
Motion pursuant to Local Rule 7.1. The Motion outlines Boyer’s disinterest in participating in the
discovery process which is further evidenced by her failure to respond to Request for Admissions.
Finally, Boyer failed to respond to the undersigned’s Order to Show Cause, again demonstrating
a willful disregard of this Court’s Orders. On these facts, the Court finds that Boyer’s conduct
constitutes bad faith and inexcusable delay.
While lesser sanctions may be available, they would be unavailing as Boyer clearly has no
interest in actively participating in this case and monetary sanctions would be ineffective given
her in forma pauperis status. Accordingly, Kroger’s Motion to Dismiss for Lack of Prosecution
is GRANTED (Doc. 24) and this matter is DISMISSED with prejudice. The Clerk of Court is
DIRECTED to close the case and enter judgment accordingly.
IT IS SO ORDERED.
DATED: December 9, 2019
STACI M. YANDLE
United States District Judge
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