The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
BAKUL DAVÈ, )
)
Plaintiff, )
)
vs. ) Case No. 3:18-cv-2122-GCS
)
BOARD OF TRUSTEES OF )
SOUTHERN ILLINOIS UNIVERSITY )
CARBONDALE, )
)
Defendant.
MEMORANDUM & ORDER
SISON, Magistrate Judge:
Plaintiff Bakul Davè filed suit on November 26, 2018, alleging that the Board of
Trustees of Southern Illinois University Carbondale (“SIU”) terminated him in a
discriminatory and retaliatory manner. By motion dated May 29, 2020, SIU moved to
dismiss Davè’s complaint for want of prosecution pursuant to Federal Rule of Civil
Procedure 41(b). SIU argues that it served written discovery upon Davè on July 19, 2019,
but, despite several failed attempts to work with Plaintiff’s counsel, no responses have
been provided to date. As a result, no discovery has been completed in this action in the
more than 12 months since the Court entered a scheduling and discovery order.
On June 13, 2019, the Court held a scheduling conference and entered a scheduling
order that set a discovery deadline of February 7, 2020. (Doc. 22). On October 4, 2019,
Defendant filed a consent motion to continue the jury trial date and to extend the
discovery schedule. In the motion, it was represented that Plaintiff would respond to
written discovery no later than October 25, 2019, and Defendant would respond to
written discovery by November 15, 2019. The Court accepted the parties’ request, as they
jointly indicated that additional time was needed to complete written discovery, and the
discovery deadline was extended through May 1, 2020. Trial was continued to October
2020. (Doc. 27). The Court, through Administrative Order No. 261, extended the deadline
again by 60 days. As it stands, the discovery deadline currently is June 30, 2020, but no
discovery has been completed, nor have any motions to compel discovery been filed.
On October 31, 2019, defense counsel reached out to Plaintiff’s counsel via email
to find out when to expect Plaintiff’s discovery responses. Defense counsel reached out
again on November 14, 2019, after receiving no response. Plaintiff’s counsel responded
that he was “putting them together” and apologized for the delay. (Doc. 29-3, p. 4).
Defense counsel followed up by email again on December 16, 2019, and asked if Plaintiff
would be interested in voluntarily dismissing this action. (Doc. 29-3, p. 3).
Receiving no response to the December 2019 communication, defense counsel
followed up again on January 2, 2020. Plaintiff’s counsel responded that he was meeting
with Plaintiff on January 7, 2020, and would have the responses completed by the end of
that week (i.e., by January 10, 2020). (Doc. 29-3, p. 1-2). No responses were provided, and
defense counsel reached out again on May 20, 2020, asking Plaintiff to consider
dismissing this case voluntarily. (Doc. 29-3, p. 1). According to SIU’s motion, Plaintiff’s
counsel did not respond, prompting SIU to move to dismiss for failure to prosecute on
May 29, 2020.
The Court directed Plaintiff’s counsel to respond to Defendant’s motion by June
22, 2020. In Plaintiff’s response, counsel provides no explanation for the delay in
responding to written discovery other than to explain that he was out of state for more
than ten weeks due to the COVID-19 pandemic and did not have the necessary
information with him to respond to the discovery. He readily admits that he should have
done a better job communicating with defense counsel “during this period of time” but
does not mention any reason for the delay before March 2020. (Doc. 31, p. 5). Nor does he
explain what happened to prevent the production of responses by January 10, 2020, as he
represented to defense counsel in his final email communication. Nevertheless, in lieu of
dismissal, Plaintiff asks the Court to compel him to respond to Defendant’s discovery
requests within 30 days and to hold dismissal as the sanction for failing to respond in a
timely manner. He also asks the Court to extend the discovery deadline through
September 30, 2020.
Rule 41(b) provides that “[i]f 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.” FED. R. CIV. PROC. 41(b). “The sanction of dismissal is the most severe sanction that a
court may apply, and its use must be tempered by a careful exercise of judicial discretion.”
McMahan v. Deutsche Bank AG, 892 F.3d 926, 931 (7th Cir. 2018)(quoting Webber v. Eye
Corp., 721 F.2d 1067, 1069 (7th Cir. 1983)(quoting reference omitted))(emphasis in
original). In McMahan, the Seventh Circuit reiterated the factors a district court must
consider before dismissing an action pursuant to Rule 41(b):
[T]he frequency and magnitude of the plaintiff’s failure to comply with
deadlines for prosecution of the suit, the apportionment of responsibility
for those failures between the plaintiff and his counsel, the effect of those
failures on the judge’s calendar and time, the prejudice if any to the
defendant caused by the plaintiff’s dilatory conduct, the probable merits of
the suit, and the consequences of dismissal for the social objectives of the
type of litigation that the suit represents.
McMahan, 892 F.3d at 931-932 (quoting Aura Lamp & Lighting Inc. v. Int’l Trading Corp.,
325 F.3d 903, 908 (7th Cir. 2003)).
When considering whether a defendant is prejudiced, an “unreasonable delay
gives rise to a presumption of prejudice.” McMahan, 892 F.3d at 932 (citing Washington v.
Walker, 734 F.2d 1237, 1239 (7th Cir. 1984)). There is no requirement that a court consider
lesser sanctions or warn a party “that dismissal was coming,” particularly where a
defendant moves for dismissal, providing notice to a plaintiff that dismissal could be
imminent. Id. at 932-933 (citing references omitted). That said, there is a strong preference
that cases be resolved on the merits where possible.
There is a strong case for dismissal of this action. The Court is troubled by repeated
promises from Plaintiff’s counsel that discovery responses were coming in short order,
though no responses have been provided and no reason for this failure was
communicated. In lieu of immediately compiling responses when Defendant moved to
dismiss on May 29, 2020, Plaintiff’s counsel now asks for an additional 30 days to respond
even though counsel represented to Defendant that responses would be completed in
early January 2020 and then, it seems, never communicated with defense counsel again.
This conduct demonstrates a frequency and magnitude to Plaintiff’s failure to comply
that counsels in favor of dismissal That said, the first time the Court was alerted to any
discovery issues or disputes was through Defendant’s motion to dismiss in May 2020.
After carefully considering the positions of the parties, the Court DENIES
Defendant's motion to dismiss. Plaintiff is DIRECTED to respond to the outstanding
discovery requests within 14 days, no later than July 14, 2020. Absent extraordinary
circumstances, this deadline will not be extended, as fourteen days is perhaps too
generous an extension. Plaintiff shall file a certificate of compliance demonstrating that
the responses have been tendered to Defendant. Failure to do so and failure to respond
timely will result in dismissal of this action with prejudice for want of prosecution.
Additionally, the final pretrial conference and jury trial dates are VACATED. By
separate order, the Court will set a telephonic status conference to select a new
presumptive trial month and to set new discovery and dispositive motion deadlines.
IT IS SO ORDERED. Digitally signed
Dated: June 30, 2020. AThint Doge oe een
12:57:13 -05'00'
GILBERTC.SISON
United States Magistrate Judge
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