Mundy v. Wieser's Concrete Products, Inc. ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS TRAVIS MUNDY, ) ) Plaintiff, ) ) vs. ) Case No. 3:21-CV-329-MAB ) WIESER’S CONCRETE PRODUCTS, ) INC., ) ) Defendant. MEMORANDUM AND ORDER BEATTY, Magistrate Judge: This matter came before the Court for an in-person discovery dispute hearing on December 2, 2021 (Doc. 25). Plaintiff, Travis Mundy, who is proceeding pro se, failed to appear for the Court hearing (Id.). Attorney Thomas E. Berry, Jr., appeared on behalf of Defendant Wieser’s Concrete Products, Inc. (Id.). This marks the second time now that Mr. Mundy has failed to appear for a scheduled Court hearing (See Docs. 24, 25). Additionally, Mr. Mundy has failed to comply with Court Orders (Docs. 21, 22), and has failed to comply with his discovery obligations, as outlined on the record at the December 2, 2021 hearing (See also Doc. 25, Ex. 1). Plaintiff has been warned, not once, but twice that dismissal was imminent if he continued to abdicate the responsibilities incumbent on him in prosecuting this case (Docs. 22, 24). Accordingly, this case will be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The Court is mindful that it “should exercise this right sparingly” and should dismiss a case “only when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing” and an explicit warning has been provided to the plaintiff that dismissal is imminent. Salata v. Weyerhaeuser Co., 757 F.3d 695, 699 (7th Cir. 2014) (quoting Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983)); Gabriel v. Hamlin, 514 F.3d 734, 736 (7th Cir. 2008) (quoting Sharif v. Wellness Intern. Network, Ltd., 376 F.3d 720, 725 (7th Cir. 2004)). As outlined on the record at the December 2, 2021 hearing, based on Mr. Mundy’s conduct, the Court can only conclude that he is no longer interested in prosecuting this case. While Mr. Mundy is now proceeding pro se, and the Court is well aware of the difficulties a pro se party may face in litigation, Mr. Mundy is nevertheless obligated to comply with Court-imposed deadlines, discovery obligations, and attend Court hearings when scheduled. Additionally, as noted on the record, the Court has considered whether alternative sanctions are appropriate, and has concluded that, based on Mr. Mundy’s conduct to date, the only option the Court now has is dismissal. Consequently, this matter is DISMISSED with prejudice pursuant to Rule 41(b) for failure to comply with Court Orders and failure to prosecute. The case is CLOSED, and the Clerk of Court is DIRECTED to enter judgment accordingly. NOTICE If Mr. Mundy – the Plaintiff - wishes to contest this Order, he has two options. He can ask the Seventh Circuit to review the order, or he can first ask the undersigned to reconsider the Order before appealing to the Seventh Circuit. If Plaintiff chooses to go straight to the Seventh Circuit, he must file a notice of appeal within 30 days from the entry of judgment. FED. R. APP. P. 4(a)(1)(A). The deadline can be extended for a short time only if Plaintiff files a motion showing excusable neglect or good cause for missing the deadline and asking for an extension of time. FED. R. APP. P. 4(a)(5)(A), (C). See also Sherman v. Quinn, 668 F.3d 421, 424 (7th Cir. 2012) (explaining the good cause and excusable neglect standards); Abuelyaman v. Illinois State Univ., 667 F.3d 800, 807 (7th Cir. 2011) (explaining the excusable neglect standard). On the other hand, if Plaintiff wants to start with the undersigned, he should file a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). The motion must be filed within twenty-eight (28) days of the entry of judgment, and the deadline cannot be extended. FED. R. CIV. P. 59(e); 6(b)(2). The motion must also comply with Rule 7(b)(1) and state with sufficient particularity the reason(s) that the Court should reconsider the judgment. Elustra v. Mineo, 595 F.3d 699, 707 (7th Cir. 2010); Talano v. Nw. Med. Faculty Found., Inc., 273 F.3d 757, 760 (7th Cir. 2001). See also Blue v. Hartford Life & Acc. Ins. Co., 698 F.3d 587, 598 (7th Cir. 2012) (“To prevail on a Rule 59(e) motion to amend judgment, a party must clearly establish (1) that the court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded entry of judgment.”) (citation and internal quotation marks omitted). So long as the Rule 59(e) motion is in proper form and submitted on-time, the 30- day clock for filing a notice of appeal will be stopped. FED. R. APP. P. 4(a)(4). The clock will start anew once the undersigned rules on the Rule 59(e) motion. FED. R. APP. P. 4(a)(1)(A), (a)(4), (a)(4)(B)(ii). To be clear, if the Rule 59(e) motion is filed outside the 28- day deadline or “completely devoid of substance,” the motion will not stop the clock for filing a notice of appeal; it will expire 30 days from the entry of judgment. Carlson v. CSX Transp., Inc., 758 F.3d 819, 826 (7th Cir. 2014); Talano v. Northwestern Medical Faculty Foundation, Inc., 273 F.3d 757, 760–61 (7th Cir. 2001); Martinez v. Trainor, 556 F.2d 818, 819– 20 (7th Cir. 1977). Again, this deadline can be extended only on a written motion by Plaintiff showing excusable neglect or good cause. The Court has one more bit of instruction regarding the appeals process. If Plaintiff chooses to appeal to the Seventh Circuit, he can do so by filing a notice of appeal in this Court. FED. R. APP. P. 3(a). The current cost of filing an appeal with the Seventh Circuit is $505.00. The filing fee is due at the time the notice of appeal is filed. FED. R. APP. P. 3(e). If Plaintiff cannot afford to pay the entire filing fee up front, he must file a motion for leave to appeal in forma pauperis (“IFP motion”), and if appropriate, file a recent statement for his prison trust fund account. See FED. R. APP. P. 24(a)(1)(C). The IFP motion must set forth the issues Plaintiff plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he is allowed to proceed IFP on appeal, he will be assessed an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He will then be required to make monthly payments until the entire filing fee is paid. 28 U.S.C. § 1915(b)(2). IT IS SO ORDERED. DATED: December 2, 2021 s/ Mark A. Beatty MARK A. BEATTY United States Magistrate Judge