Local Rule Civil L. R. 41: Dismissal of Actions
E.D. Wis. — Civil rule
Civil L. R. 41. Dismissal of Actions.
(a) Dismissal Where No Service of Process. Where the plaintiff has not effected service of process within the time required by Fed. R. Civ. P. 4(m), and the defendant has not waived service under Rule 4(d), after 21 days' notice to the attorney of record for the plaintiff, or the plaintiff if pro se, the Court may enter an order dismissing the action without prejudice.
(b) Dismissal Where No Answer or Other Pleading Filed. In all cases in which a defendant has failed to file an answer or otherwise defend within 6 months from the filing of the complaint and the plaintiff has not moved for a default judgment, the Court may on its own motion, after 21 days' notice to the attorney of record for the plaintiff, or to the plaintiff if pro se, enter an order dismissing the action for lack of prosecution. Such dismissal must be without prejudice.
(c) Dismissal for Lack of Diligence. Whenever it appears to the Court that the plaintiff is not diligently prosecuting the action and Civil L. R. 41(a) or (b) does not apply, the Court may enter an order of dismissal with or without prejudice.
(d) Dismissal of Frivolous Action or Pleading. Whenever it appears to the Court that the plaintiff's complaint, the defendant's answer (including counterclaims), or any other pleading filed by a party is frivolous, without merit, or interposed primarily for any improper purpose, the Court may dismiss or strike the pleading, or any portion of the pleading, without prejudice after 21 days' written notice to the parties.
(e) Improper Refiling of Actions. No party or attorney may dismiss and refile an action for the purpose of obtaining a different judge.
Committee Comment: Civil L. R. 41 includes former Civil L. R. 41.1 - 41.4. Those provisions have been restyled. Civil L. R. 41(a), former Civil L. R. 41.1, now explicitly incorporates the good cause standard of Fed. R. Civ. P. 4(m).
Civil L. R. 41(e) is new. It prohibits the filing of an action, followed by the dismissal and the refiling of that action in the same district for the purpose of obtaining a different judge. The practice has been reported in at least one district in this circuit. The rule does not prohibit the dismissal and the refiling of an action for other reasons.