Ronald Schroeder v. Kimberly Malone ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 28, 2020*
Decided June 8, 2020
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-2105 Appeal from the United
States District Court for the
RONALD SCHROEDER,
Eastern District of Wisconsin.
Plaintiff-Appellant,
v. No. 17-C-1676
Lynn Adelman, Judge.
KIMBERLY MALONE, et al.,
Defendants-Appellees.
Order
The district court dismissed this suit for want of prosecution after plaintiff Ronald
Schroeder repeatedly failed to respond to the defendants’ motion for summary judg-
ment. Dismissal for want of prosecution is presumptively with prejudice, see Fed. R.
Civ. P. 41(b), but a district court may provide otherwise. The judge twice warned
Schroeder that failure to respond would lead to dismissal without prejudice and, when
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 19-2105 Page 2
Schroeder persisted, the judge carried through. Both the judge’s explanation for his ac-
tion and the judgment entered by the district court state that the dismissal is without
prejudice.
Dismissal without prejudice is not a final decision and therefore cannot be appealed
under 28 U.S.C. §1291. See, e.g., Alejo v. Heller, 328 F.3d 930, 935 (7th Cir. 2003). But
Schroeder appealed anyway—and, without discussing the finality problem, appellees’
brief asserts that we have jurisdiction. Still, we must consider that question even though
the parties have bypassed it.
A dismissal nominally without prejudice can be appealed if it is the end of the line
for plaintiff as a practical matter—if, for example, the statute of limitations has expired,
see Doctor’s Associates, Inc. v. Duree, 375 F.3d 618, 622 (7th Cir. 2004)—or if it is clear that
the phrase “without prejudice” is a misnomer or clerical error. But Schroeder still has
time to file a new suit under the six-year statute of limitations that was in force at the
time of the contested events. (Wisconsin allowed six years under Wis. Stat. §893.53 for
claims arising before 2018, when the time was cut to three years. The events that led to
this suit occurred in 2017.) And the district judge’s multiple warnings that the suit
would be dismissed without prejudice—warnings implemented in the final dismissal
order—show that the terms of the judgment are not a slip of the pen.
It is hard to see how dismissal without prejudice can induce litigants to follow the
court’s deadlines. See Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (“If dismissal [under
Rule 41(b)] was to be a meaningful sanction, it had to be dismissal with prejudice.”);
Kennedy v. Huibregtse, 831 F.3d 441, 443 (7th Cir. 2016) (“Dismissal without prejudice
would have been no sanction at all”). But defendants have not filed a cross-appeal to
contend that the decision should have been with prejudice. This means that we cannot
modify the judgment to make it more favorable to the defendants. See Greenlaw v. Unit-
ed States, 554 U.S. 237 (2008). The only appeal before us, filed by Schroeder, must be
dismissed because a genuine dismissal without prejudice is not a final decision.
The appeal is dismissed for want of jurisdiction.