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Banas v. Taylor

United States District Court, N.D. Indiana, Hammond Division

October 6, 2014

DIANA BANAS, Plaintiff,
v.
MICHAEL A. TAYLOR, JR. and SWIFT TRANSPORTATION CO., INC. Defendants.

OPINION AND ORDER

ANDREW P. RODOVICH, Magistrate Judge.

This matter is before the court on the Second Motion for Sanctions [DE 33] filed by the defendant, Swift Transportation, on September 9, 2014. For the following reasons, Swift's motion is GRANTED, and this matter is DISMISSED.

Background

The plaintiff, Diana Banas, claims injuries and damages arising from an automobile accident that occurred on December 10, 2009. On February 5, 2013, the defendant, Swift Transportation Co., Inc., filed a motion to compel Banas to respond to its written discovery requests and asked for monetary sanctions. The court granted Swift's motion on March 14, 2014. Banas subsequently turned over her responses to Swift's discovery requests but has not paid the monetary sanction to date. Swift's counsel repeatedly has inquired about payment of the sanction, and despite Banas' counsel's assurance that the payment was mailed on August 12, 2014, Swift has not received the payment.

In 2013, Banas was involved in a separate car accident and suffered serious injuries that caused her to be hospitalized for a period of time. Banas never supplemented her responses to Swift's discovery requests to distinguish the injuries she sustained as a result of the 2009 and 2013 accidents and turned over medical records that related to the injuries she sustained in both accidents. In an effort to determine which injuries Banas incurred as a result of the 2009 accident, Swift sent Banas authorizations for the release of her medical records from Community Care Network Physicians, the records from her insurer, and her Social Security Administration Disability Records. Banas never signed and returned the authorizations. Swift was able to obtain the information from Community Care and Banas' insurer, but it could not obtain her Social Security Disability records without a signed authorization. Swift's counsel has followed up with Banas' counsel multiple times but has not received a signed authorization.

Swift's counsel also attempted to schedule Banas' deposition after it received her discovery responses in April 2013. However, the deposition was delayed by Banas' 2013 accident. Banas' deposition originally was scheduled for August 27, 2013. At her first deposition, Swift represents that Banas rarely answered the questions asked, became confused, and could not distinguish between the injuries she sustained in the 2009 and 2013 accidents. For this reason, Swift agreed to continue Banas' deposition for a time when she would be better able to testify coherently. After numerous attempts to re-schedule her deposition, Swift unilaterally scheduled the deposition and issued a notice of deposition and subpoena. The parties and Banas agreed to continue her deposition until May 21, 2014. However, Banas later contacted Swift's counsel directly and stated that she would not appear at the deposition to testify. Swift's counsel immediately notified Banas' counsel. At the May 2, 2014 status conference, the court directed Banas to appear at the May 21, 2014 deposition.

Banas did appear at the deposition, but Swift represents that she was evasive and combative in her testimony. She claimed memory lapses, but none of the medical evidence provided showed that she suffered memory loss. Swift further represents that Banas was able to remember minute details of information she wanted to provide but could not remember more significant details about her 2013 accident. Banas gave little meaningful testimony and made a blanket claim that all of her current ailments were related to the 2009 injury.

Swift filed the present motion for sanctions on September 9, 2014. Banas did not file a response in opposition, and the time to do so has passed.

Discussion

Federal Rule of Civil Procedure 37(b)(2) gives the court authority to sanction a party for failing to comply with a court order and states in relevant part:

(2) Sanctions in the District Where the Action Is Pending.
(A) For Not Obeying a Discovery Order. If a party or a party's officer, director, or managing agent-or a witness designated under Rule 30(b)(6) or 31(a)(4)-fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing ...

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