United States District Court, N.D. Indiana, Hammond Division
FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(b)(1)(B) & (C)
PAUL R. CHERRY, District Judge.
This matter is before the Court on a Motion for Sanctions [DE 17], filed by Defendants on February 3, 2014. Plaintiff has not filed a response, and the time to do so has passed. On February 4, 2014, District Court Judge Rudy Lozano entered an Order [DE 19] referring this matter to the undersigned Magistrate Judge for a report and recommendation on this motion pursuant to 28 U.S.C. § 636(b)(1)(B). This Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). For the following reasons, the Court recommends that the District Court grant the motion and dismiss Plaintiff's complaint with prejudice.
Plaintiff filed this lawsuit on April 9, 2013, in Lake County, Indiana, state court, alleging battery and liability under 42 U.S.C. § 1983 for injuries he allegedly sustained while being booked at the Hammond City Jail. Defendants removed this case to the United States District Court for the Northern District of Indiana on May 23, 2013. On August 22, 2013, this Court held a scheduling conference, setting December 31, 2013, as the deadline for completion of fact discovery and for Plaintiff's expert witness disclosures and reports. At that conference Plaintiff's counsel admitted that he had not served Defendants with the required Federal Rule of Civil Procedure 26 initial disclosures. The Court ordered him to serve Defendants with those disclosures by September 5, 2013.
Defendants represent that Plaintiff has neither served them with these disclosures nor responded to interrogatories and requests for production of documents served during the discovery period. This, Defendants represent, forced the cancellation of Plaintiff's deposition, which was scheduled to take place in September.
To remedy this, Defendants filed a Motion to Compel Discovery on October 16, 2014, which this Court granted on November 14, 2014, after Plaintiff failed to respond. Defendants filed an Affidavit for Fees on November 27, 2013, seeking attorney fees for the work done in preparing the Motion to Compel. Plaintiff again did not respond, and this Court awarded the Defendants $846.00 in attorney fees on January 27, 2014.
Defendants represent that Plaintiff has neither paid the attorney fees nor obeyed the order, leading them to file this Motion for Sanctions on February 3, 2014, which District Judge Rudy Lozano referred to the undersigned Magistrate Judge on February 4, 2014. Plaintiff again did not respond.
On April 2, 2014, The Court issued a notice setting the matter for a motion hearing on April 16, 2014, giving counsel of record, including Plaintiff's attorney, Eduardo Fontanez, electronic notice of the date and time of the hearing. The hearing was held on the scheduled date. Defendants appeared by attorney John McCrum. Plaintiff failed to appear either in person or by counsel and did not contact the Court to explain his absence. At the hearing, defense counsel explained that, as of April 16, 2014, Plaintiff still had not produced Rule 26 initial disclosures, had not responded to Defendants' discovery requests, had not complied with the Court's Order on the Motion to Compel, and had not paid the attorney fees he owes to Defendants. In light of all these failures, Defendants ask for sanctions against Plaintiff; specifically, they ask that this case be dismissed with prejudice under Federal Rule of Civil Procedure 37.
Defendants seek dismissal on two related grounds: Federal Rule of Civil Procedure 37 (b)(2)(A), which provides that Courts may issue sanctions (including dismissal) against parties for failing to comply with a discovery order, and Rule 37(d), which allows for sanctions against parties that fail to serve answers to interrogatories. Rule 37(d), however, also requires that parties seeking sanctions must provide a certification "that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action." Fed.R.Civ.P. 37(d)(1)(B). Defendants did not provide such a certification, so the undersigned accordingly recommends that Judge Lozano disregard that portion of the motion.
This leaves Defendants' contention that Rule 37(b)(2)(A) supports dismissal of this case. The standard for dismissal under Rule 37(b)(2)(A) is a finding by the court of "willfulness, bad faith or fault" by clear and convincing evidence. Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir. 2003) (citing In re Golant, 239 F.3d 931, 936 (7th Cir. 2001); Langley by Langley v. Union Elec. Co., 107 F.3d 510, 514 (7th Cir. 1997); In re Rimsat, Ltd., 212 F.3d 1039, 1046 (7th Cir. 2000)); but see Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Americas LLC, 516 F.3d 623, 625 (7th Cir. 2008) (speculating that Maynard might be wrong in requiring a heightened burden of proof).
Default judgment is a drastic sanction. Rice v. City of Chicago, 333 F.3d 780, 785-6 (7th Cir. 2003). This circuit "has a well established policy favoring a trial on the merits over a default judgment." Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 811 (7th Cir. 2007). Indeed, it is an "extreme sanction that should be used only as a last resort." Robinson v. Champaign Unit 4 Sch. Dist., 412 F.App'x 873, 877 (7th Cir. 2011).
As Judge Lozano explained in Sayles v. Indiana Dep't of Corr., courts look "to six factors in evaluating whether dismissal for failure to cooperate with discovery is warranted." 3:11-CV-427, ...