Birkenfeld v. Speedway LLC

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION

JOHN BIRKENFELD, ) Plaintiff, ) ) v. ) CAUSE NO.: 2:19-CV-121-JVB-JPK ) SPEEDWAY LLC d/b/a SPEEDWAY, ) Defendant. )

OPINION AND ORDER This matter is before the Court sua sponte. On July 25, 2019, the Court attempted to conduct a telephonic Rule 16 Preliminary Pretrial Conference. Defendant appeared by counsel, and Plaintiff appeared pro se. Plaintiff encountered connection issues with his phone, and represented that he would call the Court back in five minutes using a different phone. When more than ten minutes elapsed and Plaintiff had yet to call back, the Court ended the conference and rescheduled it for August 6, 2019. On that date, the Court again attempted to conduct a telephonic Rule 16 Preliminary Pretrial Conference, but Plaintiff could not be reached as the number he provided to the Court was out of service. Per Federal Rule of Civil Procedure 41 and Local Rule 41-1, actions may be dismissed for failure to prosecute. A pro se plaintiff is under the same duty as an attorney to pursue a cause of action in accordance with court orders and the Federal Rules of Civil Procedure. See Jackson v. City of Chicago, No. 02 C 9113, 2004 WL 2958771, at *4 (N.D. Ill. Nov. 19, 2004) (citing Vukadinovich v. McCarthy, 901 F.2d 1439, 1445 (7th Cir. 1990)). Moreover, “Rule 41(b) authorizes the district court to dismiss a case regardless of whether a lawyer or a pro se party bears the responsibility for failure to prosecute.” Ovigyan v. City of Belleville, No. 92-1727, 1993 WL 102648, *1 (7th Cir. 1993) (unpublished opinion) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 633 (1962)). Accordingly, the Court hereby ORDERS Plaintiff to file, on or before August 27, 2019, a notice that he intends to proceed with litigating this cause of action. Such notice must include

Plaintiff’s contact information including a working telephone number. The Court WARNS Plaintiff that failure to comply with this Order, prosecute this action, or participate in Court proceedings may result in an entry of appropriate sanctions, up to and including dismissal of his claims with prejudice for failure to prosecute. So ORDERED this 6th day of August, 2019. s/ Joshua P. Kolar MAGISTRATE JUDGE JOSHUA P. KOLAR UNITED STATES DISTRICT COURT

cc: Plaintiff John Birkenfeld, pro se