Presently before the court is a Motion to Dismiss (#110) filed by Defendant, C.H.I. Overhead Doors, Inc, on November 8, 2023. Therein, Defendant contends that Plaintiff, FrenchPorte IP, LLC, has failed to comply with its discovery obligations, comply with court orders, and otherwise prosecute the matter in a timely fashion, such that dismissal is warranted under Federal Rules of Civil Procedure 37 and 41. Plaintiff has filed no response.[1] 

BACKGROUND

Plaintiff’s failures to comply with its discovery obligations throughout this case are well-documented. Those failures, which date back to at least February 2022, were detailed originally in Magistrate Judge Eric I. Long’s Report and Recommendation (#70), entered on December 17, 2022. Therein, Judge Long recommended that Defendant’s Motion for Sanctions (#60) be granted to the extent that attorney’s fees be awarded, but declined to recommend dismissal of the case. Plaintiff’s failures to comply with its discovery obligations were detailed further in this court’s Order (#88) accepting the Report and Recommendation.

On January 31, 2023—43 days after Judge Long’s recommendation for sanctions and 38 days before this court accepted that recommendation—Plaintiff’s counsel, Geoffrey Mason of Moarbes, LLP, filed a Motion to Withdraw (#78), citing Plaintiff’s failure to make any payments in the preceding seven months. On March 15, 2023, Judge Long gave Plaintiff 60 days in which to find new counsel.

The Motion to Withdraw remained pending while the parties litigated a Motion for Protective Order Modification (#94), which Plaintiff, through counsel, filed in order to provide certain materials to prospective new counsel. Judge Long granted that Motion on July 20, 2023, and also provided Plaintiff 30 more days to procure new counsel. After three extensions of time were granted, Judge Long ordered Plaintiff to procure new counsel by September 15, 2023, and noted that “[n]o further extensions will be granted.”

In a series of Notices (#100 through #103), filed between September 19 and October 10, 2023, Plaintiff’s counsel announced that he had come to an agreement with Plaintiff whereby he would remain as counsel, and asked to withdraw the still-pending Motion to Withdraw. Judge Long subsequently denied the Motion to Withdraw as moot, noting that Plaintiff once again had active counsel in the case.

A minute entry from October 18, 2023, shows that, on that date, Judge Long ordered that Plaintiff resolve its remaining discovery issues by October 31, 2023. Plaintiff was also given until November 7, 2023, to file a response regarding who— whether Plaintiff or Plaintiff’s counsel—was responsible for the sanctions previously imposed by the court. Following Plaintiff’s Motion for Extension of Time (#105), the deadline for the discovery issues was extended to November 7, 2023. Judge Long noted that “[n]o further extensions will be granted.”

When the November 7 deadline came and went, Defendant filed the instant Motion to Dismiss (#110). Defendant alleges that Plaintiff has still failed to comply with its discovery obligations.

On November 14, 2023, Plaintiff’s counsel, ostensibly on behalf of Plaintiff, filed an “In Camera Statement of Frenchporte and Moarbes Relating to Responsibility for Sanctions.” (#112). In that filing, Plaintiff’s counsel wrote that “[Plaintiff] accepts full responsibility for the ‘reasonable attorney’s fees’ incurred in connection with its failure to provide its counsel Moarbes with adequate, timely funding[.]” Counsel detailed at length Plaintiff’s failure to make payments, including those payments upon which counsel’s reappearance in the case had been premised. As to the pending Motion to Dismiss, counsel wrote that “[Plaintiff] does not have any basis on which to oppose the pending motion to dismiss based on non-prosecution and failure to abide by this Court’s Orders, and thus accepts the dismissal of its case as well as ‘reasonable attorney’s’ fees for its failure to abide by these same Orders.”

Later that same day, Plaintiff’s Counsel filed an “In Camera Statement of Moarbes Relating to Inability to Pay.” (#115). In that filing, counsel wrote:

At this point in the evening, with FrenchPorte demanding a filing counsel will not make for an extension of time, all that can be said is that FrenchPorte’s position is unclear and that FrenchPorte may potentially withdraw from the sealed paper [(#112)] filed earlier. It should thus be considered filed on behalf of Moarbes for the time being[.]

Plaintiff’s counsel subsequently filed a Motion to Withdraw (#118), in which he again detailed Plaintiff’s failure to pay money owed.

 ANALYSIS

Federal Rule of Civil Procedure 37(b)(2)(A)(v) provides that sanctions for failure to comply with discovery orders may include dismissal of the underlying action. Similarly, Rule 41(b) provides that a court, upon motion of the defendant, may dismiss the matter either for a plaintiff’s failure to prosecute the matter or a plaintiff’s failure to comply with the rules of civil procedure or court orders. Fed. R. Civ. P. 41(b). Defendant seeks dismissal on both bases.

As to Rule 37, there is no dispute that Plaintiff has failed to meet its discovery obligations and has continuously failed to comply with Judge Long’s discovery orders. In the Report and Recommendation (#70), Judge Long detailed Plaintiff’s insufficient discovery production dating at least as far back as February 2022. Judge Long noted that he had warned Plaintiff in June 2022 that failure to comply with discovery obligations could result in dismissal of the case with prejudice. Though Judge Long ultimately declined to recommend dismissal in December 2022, he observed “that [the] Plaintiff’s demonstrated pattern of defiantly ignoring the Federal Rules of Civil Procedure and prior Court orders justifies dismissal of this case. The only thing saving this case is that the Court has not assessed lesser sanction to secure Plaintiff’s compliance.”

Since the filing of the Report and Recommendation nearly a year ago, Plaintiff has still not resolved its discovery shortcomings. Plaintiff’s counsel concedes as much.

While “[a] dismissal with prejudice is a harsh penalty which is employed only under certain circumstances[,] … [w]here counsel is specifically warned, as he was here, of the consequences of his failure to abide by Court orders, the result is fitting.” Illinois Cent. Gulf R.R. Co. v. J & L Contractors, Inc., 121 F.R.D. 391, 396 (C.D. Ill. 1988). Further, the court finds that “it is unlikely a lesser sanction would deter [Plaintiff] from further noncompliant conduct.” OCBR Weathersby Res., Inc. v. Agrigenetics, Inc., 2021 WL 6127923, at *4 (C.D. Ill. Oct. 27, 2021). Indeed, a lesser sanction was imposed, and it has had no effect.

Accordingly, while dismissal with prejudice is a harsh penalty, the court finds that Plaintiff’s contumacious conduct requires it. Defendant’s Motion to Dismiss (#110) is GRANTED, and Plaintiff’s Amended Complaint (#22) is dismissed with prejudice. See Godlove v. Bamberger, Foreman, Oswald, & Hahn, 903 F.2d 1145, 1149 (7th Cir. 1990) (affirming dismissal with prejudice under Rule 37 where “district court concluded that after more than eighteen months of intransigence, resistance, and disregard of court orders that no other sanction could be meaningful”). The outstanding issues of attorney’s fees and the division of responsibility therefor will be addressed in a future order.

IT IS THEREFORE ORDERED THAT:

(1) Defendant’s Motion to Dismiss (#110) is GRANTED.

(2) Plaintiff’s Amended Complaint (#22) is DISMISSED with prejudice.

ENTERED this 7th day of December, 2023.