OCBR WEATHERSBY RESOURCES, INC., d/b/a LIVINGSTON COUNTY CUSTODIAL SERVICES, Plaintiff, v. AGRIGENETICS, INC., d/b/a MYCOGEN SEEDS, Defendant Case No. 20-cv-1210-JES-JEH United States District Court, C.D. Illinois October 27, 2021 Counsel Brian M. Gabor, Law Office of Brian M. Gabor, Ltd, P.C., Pontiac, IL, for Plaintiff. Michael J. Kanute, Sean Joseph Powell, Faegre Drinker Biddle & Reath LLP, Chicago, IL, for Defendant. Shadid, James E., United States District Judge ORDER *1 This matter is now before the Court on Defendant's Motion (Doc. 22) to Dismiss for Failure to Prosecute, or in the Alternative, to Enter a Show Cause Order Why Case Should not be Dismissed and Memorandum (Doc. 23) in Support. Plaintiff has filed a Response[1] (Doc. 26) to Defendant's Motion. For the reasons set forth below, Defendant's Motion is GRANTED. BACKGROUND The Parties agree on the relevant background of this case described below. Docs. 23; 26. Agrigenetics I On July 25, 2018, Plaintiff filed its initial complaint regarding this dispute in the Circuit Court of the Eleventh Judicial Circuit, Livingston County, Illinois, Case No. 2018L21, alleging breach of contract claims relating to two different contracts: (1) the Grand Ridge contract and (2) the Pontiac contract. See Doc. 23-1. Defendant removed that case to the Central District of Illinois, and it became OCBR Weathersby Resources, Inc. v. Agrigenetics, Inc., Case No. 1:18-cv-01364-JMB-JEH (“Agrigenetics I”). On October 11, 2018, Defendant filed a motion to dismiss Agrigenetics I regarding Plaintiff's claims related to the Pontiac contract. Plaintiff failed to respond to Defendant's motion. Thereafter, the Court granted Defendant's motion on November 20, 2018, and dismissed Plaintiff's claims relating to the Pontiac contract with prejudice. See Doc. 23-2. On July 26, 2019, after Plaintiff failed to conduct any discovery or otherwise advance its claims, the parties filed a stipulation to voluntarily dismiss Plaintiff's remaining claims relating to the Grand Ridge contract pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The Court terminated the case on the same day. Agrigenetics II On June 1, 2020, Plaintiff refiled its complaint in this Court, OCBR Weathersby Resources, Inc. v. Agrigenetics, Inc., Case No. 20-cv-1210. Doc. 1. Based on the dockets, Plaintiff has been represented by the same counsel in Agrigenetics I and Agrigenetics II. Due to deficiencies in Plaintiff's pleadings related to subject matter jurisdiction, Plaintiff filed its now operative Amended Complaint on June 2, 2020. Doc. 3. Plaintiff's Amended Complaint again alleges two breach of contract claims relating to the Grand Ridge contract and Pontiac contract (Counts I and II), as well as claims for tortious interference with a business opportunity (Count III) and promissory estoppel (Count IV) as to both contracts. Id. Because Plaintiff's claims regarding the Pontiac contract all depended on an issue that had already been litigated and decided by the Court with prejudice on the merits, counsel for Defendant sent Plaintiff's counsel a letter asking Plaintiff to voluntarily dismiss its claims relating to the Pontiac contract to avoid wasting the Parties' and the Court's time and resources. Doc. 23-3. Plaintiff's counsel never responded to the letter. As a result, on November 12, 2020, Defendant filed a motion to dismiss Counts II, III, and IV in Agrigenetics II. Doc. 10. On December 22, 2020, after Plaintiff again failed to file a response, the Court granted Defendant's motion and dismissed Counts II, III, and IV of Plaintiff's Amended Complaint with prejudice. Thus, only one breach of contract claim for $67,864 remains in the case. *2 After the Court granted Defendant's second motion to dismiss on December 22, 2020, Plaintiff once again failed to conduct any discovery or otherwise litigate this case. To date, Plaintiff has not propounded a single discovery request, noticed a single deposition, or otherwise attempted to advance its claims. Although Defendant propounded written discovery and served a 30(b)(6) deposition notice on Plaintiff on April 29, 2021, Plaintiff never responded to Defendant's discovery, which prevented Defendant from moving forward with the noticed deposition and any other discovery. See Docs. 23-4, 23-5 (including Agrigenetics' First Set of Interrogatories, First Requests for Production, 30(b)(6) Deposition Notice to Plaintiff, and an email Between Agrigenetics' Counsel and Plaintiff's Counsel re Plaintiff's Failure to Respond to Discovery). On May 6, 2021, after months of silence from Plaintiff's counsel, and to avoid expending unnecessary time and resources attempting to conduct one-sided discovery on a relatively small claim that Plaintiff had shown no interest in prosecuting, Defendant filed a motion for a settlement conference before Magistrate Judge Jonathan E. Hawley. See Doc. 15. The Court granted Defendant's motion on May 7, 2021, and the settlement conference was ultimately scheduled for September 23, 2021. On September 23, 2021, the Court attempted to hold the settlement conference via video conference. Doc. 23, at 4. However, only Defendant and its counsel appeared while Plaintiff and his counsel did not. Id. After the Court emailed Plaintiff's counsel and warned him that the Court was going to enter an order to show cause why this case should not be dismissed for failure to prosecute, Plaintiff's counsel appeared, without any representative for Plaintiff, OCBR. Counsel stated that he could not proceed with the settlement conference and instead intended to withdraw from this case. See Minute Entry Dated 9/23/21. As a result, the Court gave Plaintiff's counsel until September 30, 2021, to file a motion to withdraw as counsel for Plaintiff. Counsel has yet to file such motion. On September 29, 2021, Defendant filed a Motion to Dismiss for Lack of Prosecution, or in the Alternative, Motion for Order to Show Cause Why Case should not be Dismissed. Doc. 22. Plaintiff again failed to respond to the Motion within the allotted timeframe. Instead, Plaintiff requested an extension of time to respond to the motion after the deadline had passed. As indicated above, the Court granted Plaintiff's request for additional time and considers his Response to Defendant's Motion to dismiss. See supra fn.1. LEGAL STANDARD Defendant brings its Motion to dismiss pursuant to Federal Rules of Civil Procedure 41(b) and 37. Pursuant to Federal Rule of Civil Procedure 41(b), upon a defendant's motion, a district court may dismiss a case for lack of prosecution “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” One of the purposes of Rule 41(b) is to allow a court “to achieve the orderly and expeditious disposition of cases.” Williams v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962)). Similarly, “Federal Rule of Civil Procedure 37 authorizes sanctions, including dismissal, against a party who fails to attend his own deposition, respond to discovery requests, or comply with court orders and deadlines.” Mojapelo v. Nat'l R.R. Passenger Corp., 2018 WL 10809373, at *1 (N.D. Ill. Feb. 22, 2018), aff'd, 748 F. App'x 68 (7th Cir. 2019). Under Rule 37, dismissal is an appropriate sanction if the court finds “that the party against whom sanctions are imposed displayed willfulness, bad faith or fault.” Aura Lamp & Lighting Inc. v. Int'l Trading Corp., 325 F.3d 903, 909 (7th Cir. 2003). DISCUSSION Plaintiff concedes every single fact described in the background section above. He does not attempt to distinguish Defendant's characterization of his conduct or provide any additional facts to explain his utter silence. Rather, Plaintiff's sole justification to avoid dismissal of the remaining claim in this case is that the sanction is not proportional to his conduct. Doc. 27, at 3. *3 Contrary to Plaintiff's submission, the conduct in this case is the exact type of conduct that warrants dismissal, whether it be under Fed. R. Civ. P. 37(b) or 41(b). “Rule 37 allows a court to sanction a party for discovery noncompliance caused by ‘willfulness, bad faith or fault,’ while Rule 41(b) authorizes sanctions, upon a party's motion, based on a ‘clear record of delay or contumacious conduct.’ ” Mojapelo v. Nat'l R.R. Passenger Corp., 748 F. App'x 68, 70 (7th Cir. 2019) (quoting Brown v. Columbia Sussex Corp., 664 F.3d 182, 190 (7th Cir. 2011) (affirming dismissal under Rule 37)). Both Rules 37 and 41 require the Court to tailor the sanction to the severity of the litigant's misconduct. Nelson v. Schultz, 878 F.3d 236, 239 (7th Cir. 2017). Here, the sanctionable conduct under the Rules is present and the sanction of dismissal is proportional to Plaintiff's conduct. As Defendant amply summarized in his motion to dismiss: Among other things, Plaintiff has failed to: (1) respond to two different motions to dismiss filed by Agrigenetics, both of which resulted in an order dismissing Plaintiff's claims with prejudice; (2) propound a single discovery request or notice a single deposition; (3) respond to Agrigenetics' written discovery and 30(b)(6) deposition notice, thereby stonewalling Agrigenetics' ability to build its defense; (4) respond to Agrigenetics' counsel for months at a time regarding resolving the case without further unnecessary motion practice; and most recently, (5) participate in the Court-ordered Settlement Conference. Doc. 23, at 1-2. In the Court's experience, it is rare to see a counseled litigant with such disinterest in prosecuting his case as the Plaintiff here. As repeated throughout cases discussing the drastic measure of dismissal, it is meant for cases where there is a pattern of non-compliance. This is such a case worthy of this measure. As to discovery noncompliance, in Mojapelo, the Seventh Circuit held dismissal may be appropriate under Rule 37 “after a party makes more than just one discovery error and gives no reasonable explanation for missing deadlines or responding to interrogatories.” Mojapelo, 748 F. App'x at 71 (citing Brown, 664 F.3d at 191–92; Ladien v. Astrachan, 128 F.3d 1051, 1057 (7th Cir. 1997)). Likewise, refusing to attend a deposition can be evidence of fault within the meaning of Rule 37 if the party fails to give a legitimate reason, “especially after failing to timely respond to interrogatories or supply requested documents.” Id. (citing Collins v. Illinois, 554 F.3d 693, 696–97 (7th Cir. 2009)). Here, with respect to discovery, Plaintiff failed to respond to Agrigenetics' written discovery and 30(b)(6) deposition notice. In his Response, Plaintiff has failed to even attempt to provide “lame excuses” for his noncompliance, like the plaintiff in Mojapelo. Therefore, the Court finds he is at “fault” within the meaning of Rule 37. Additionally, Plaintiff has not propounded a single discovery request or noticed a single deposition, which demonstrates his disinterest in prosecuting this case. See Fed. R. Civ. P. 41(b). Plaintiff's repeated failures to engage in discovery raises the question of whether re-filing this lawsuit was meant to “harass, cause unnecessary delay, or needlessly increase the cost of litigation.” See Fed. R. Civ. P. 11(b)(1); 26(g)(B)(ii). Beyond discovery, Plaintiff refused to respond to opposing counsel for months when confronted with Defendant's request to dismiss claims that had already been litigated in Agrigenetics I and dismissed with prejudice, thereby forcing Defendant to file a motion to dismiss with the Court. Like in Agrigenetics I, Plaintiff failed to respond to Defendant's motion, thereby suggesting his disinterest in prosecuting his case. When ordered to attend a settlement conference to discuss resolution of this case, Plaintiff failed to attend and no conference was able to be conducted. *4 As to the severity of this sanction, considering Plaintiff failed to attend a remote hearing without any explanation, it is unlikely he would attend an in-person hearing. Regardless, given his history in both Agrigenetics I and Agrigenetics II of stark silence, it is unlikely a lesser sanction would deter him from further noncompliant conduct. In fact, Plaintiff has already experienced this type of sanction when the Court dismissed certain counts in both Agrigenetics I and Agrigenetics II upon Defendant's motion to dismiss and Plaintiff's failure to respond. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (“[A] litigant effectively abandons the litigation by not responding to alleged deficiencies in a motion to dismiss.”). In sum, not only has Plaintiff had a pattern of noncompliance in discovery, but he has continued that pattern throughout this entire litigation without any justification for doing so – a fact which he does not contest. See Doc. 27, at 1. Therefore, the Court finds it is appropriate to dismiss this case pursuant to Rules 37 and 41. CONCLUSION For the reasons set forth above, Defendant's Motion (Doc. 22) to Dismiss is GRANTED and this case is dismissed with prejudice. The Clerk is directed to close this case. Signed on this 27th day of October, 2021. Footnotes [1] Over Defendant's Objection to Plaintiff's Motion (Doc. 24) for an Extension of Time to File Response to Defendant's Motion (Doc. 22) to Dismiss, the Court grants Plaintiff's Motion and considers his Response herein.