03-3944 & 04-1358 Sharif v. Wellness International Network, Ltd.

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“We have repeatedly held that a district court ordinarily may not dismiss a case for want of prosecution without first providing an explicit warning to the plaintiff. See Aura Lamp, 325 F.3d at 908; Bolt v. Loy, 227 F.3d 854, 856 (7th Cir. 2000); FEC v. Salvi, 205 F.3d 1015, 108-19 (7th Cir. 2000); Ball, 2 F.3d at 760. However, the rule was adopted specifically for situations in which claims are dismissed with prejudice. Ball, 2 F.3d at 753; Bolt, 227 F.3d at 855. Because a plaintiff may refile the same suit on the same claim, dismissal without prejudice does not constitute such a harsh sanction and does not foreclose a determination on the merits. In such a circumstance, an explicit warning is not normally required.

“That is not, however, the situation here. Although Judge Der-Yeghiayan ostensibly dismissed plaintiffs’ claims without prejudice, the effect may be the same as a dismissal with prejudice-plaintiffs may not have the ability to refile. Indeed, plaintiffs notified the court that there may be statute of limitations problems if the case is dismissed for lack of prosecution. Nevertheless, without even considering the impact of its holding, the court dismissed the case. To do so, we hold, constitutes an abuse of discretion.”

Vacated and Remanded.

Appeals from the United States District Court for the Northern District of Illinois, Der-Yeghiayan, J., Evans, J.