United States District Court, N.D. Indiana, Fort Wayne Division
ANTHONY C. MARTIN, Plaintiff,
CITY OF FORT WAYNE, et al., Defendants.
OPINION AND ORDER
ROGER B. COSBEY, Magistrate Judge.
Before the Court is Defendants' Motion to Dismiss for Failure to Comply With Discovery; or Alternatively, Motion to Compel Deposition (Docket # 44) filed on August 22, 2014, by Defendants City of Fort Wayne, the Fort Wayne Police Department, and Officer Gregory Addison (collectively, "Defendants"). Defendants ask that the Court dismiss this case under Federal Rule of Civil Procedure 37(b) as a sanction for pro se Plaintiff Anthony Martin's failure to appear for his noticed deposition, or alternatively, compel Martin to appear at and participate in his own deposition. (Docket # 44.) Martin, who is incarcerated, filed a response opposing Defendants' motion on September 23, 2014 (Docket # 50); Defendants have not filed a reply, and the time to do so has now passed.
A. Factual and Procedural Background
Martin filed this 42 U.S.C. § 1983 case against Defendants on January 24, 2012, alleging various federal and state law claims arising from a December 15, 2010, encounter. (Docket # 1.) Specifically, Martin claims that Defendants arrived at his residence in response to what appeared to be a domestic dispute, entered his home without consent or a warrant, and then used excessive force against him. (Docket # 1.)
On April 29, 2014, this Court set a deadline of May 30, 2014, for any amendments to the pleadings, and a deadline of August 29, 2014, for the completion of all discovery. (Docket # 31.) Not long thereafter, the Court set a deadline of September 29, 2014, for the filing of any dispositive motions. (Docket # 36.)
On May 7, 2014, Defendants filed a motion for leave to take Martin's deposition on June 18, 2014 (Docket # 34); this Court granted the motion (Docket #37). Defendants mailed the notice of deposition to Martin at the Allen County Jail that same day. (Docket # 39.)
On June 26, 2014, Defendants filed a second motion for leave to take Martin's deposition, explaining that although Martin appeared for the June 18th deposition, he indicated he did not want to answer any questions until he had an attorney to represent him; accordingly, Defendants agreed to reschedule the deposition for August. (Docket # 41.) The Court granted Defendants' second motion to take Martin's deposition, which was set for August 1, 2014. (Docket 42.) On June 30, 2014, Defendants mailed the notice of deposition to Martin at the Allen County Jail. (Docket # 43.)
On August 22, 2014, Defendants filed the instant motion, reciting that their counsel attempted to depose Martin at the Allen County Jail on August 1, 2014, but a confinement officer indicated that when Martin was called to come down for his attorney visit, he "refused to come down." (Docket # 44, Ex. I.) Martin filed a response on September 23, 2014, disputing Defendants' version of the events. (Docket # 50.)
B. Applicable Legal Standard
Federal Rule of Civil Procedure 37(b) provides that "[i]f a party... fails to obey an order to provide or permit discovery..., the court where the action is pending may issue further just orders[, including]... dismissing the action or proceeding in whole or in part...." Fed.R.Civ.P. 37(b)(2)(A). "The simple failure to comply is enough [to warrant sanctions], notwithstanding a complete lack of culpability on [the plaintiff's] part." Halas v. Consumer Servs., Inc., 16 F.3d 161, 164 (7th Cir. 1994). That is, "the culpability of a party who fails to comply with a court order determines only which sanctions the court should impose and not whether any sanctions are appropriate at all." Id. (citations omitted). "[A]n award of sanctions must be proportionate to the circumstances surrounding the failure to comply with discovery." Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382 (7th Cir. 1993); accord Martin v. Fort Wayne Police Dep't, No. 1:04-cv-450, 2005 WL 3118020, at *3 (N.D. Ind. Nov. 21, 2005).
In that regard, "a finding of willfulness, bad faith, or fault... comes into play when dismissals are used specifically as a discovery sanction under [Rule] 37." Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003); accord In re Golant, 239 F.3d 931, 936 (7th Cir. 2001). The Seventh Circuit Court of Appeals has cautioned that a court must use its dismissal power sparingly, as it is a "harsh sanction" which should "be employed only as a last resort." Rice v. City of Chicago, 333 F.3d 780, 786 (7th Cir. 2003); see also Maynard, 332 F.3d at 467 (stating that "[o]f all possible sanctions, dismissal is considered draconian'" and that the court must be "vigilant" in its review of such actions).
Defendants request that this case be dismissed as a sanction under Rule 37(b) for Martin's failure to submit to his deposition. They emphasize that Martin received notice of the deposition set on two different dates and that his failure to submit warrants dismissal of his case. Alternatively, Defendants ask that the Court compel Martin to comply with their deposition request. (Docket # 44.)
Martin disputes Defendants' request for sanctions. First, he explains that he did not answer the questions at the June 18th deposition because he did not have a lawyer and feared the deposition might lead to criminal prosecution. Second, he denies ever telling an Allen County Jail officer on August 1, 2014, that he would not come down for his deposition. Martin argues that Allen County Jail personnel routinely retaliate against him ...