United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
ANDREW P. RODOVICH, Magistrate Judge.
This matter is before the court on the Motion to Dismiss Or, In the Alternative, to Compel and to Enforce and for Sanctions [DE 61] filed by the defendant, Lowell, Inc. (incorrectly sued as McDonald's), on September 4, 2014, and the Petition for Partial Relief From the Court's August 12, 2014 Order [DE 67] filed by the plaintiff, Eric Phernetton, on September 24, 2014. For the following reasons, the Motion to Dismiss Or, In the Alternative, to Compel and to Enforce and for Sanctions [DE 61] is GRANTED IN PART and DENIED IN PART, and the Petition for Partial Relief From the Court's August 12, 2014 Order [DE 67] is GRANTED.
Throughout the discovery process, the parties have struggled to work together. On March 25, 2014, Lowell's counsel, Jason D. Keck, attempted to speak with the plaintiff, Eric Phernetton, regarding the parties' Federal Rules of Civil Procedure 26(f) report. Phernetton refused to respond substantively to Keck. On April 1, 2014, Lowell served its First Set of Interrogatories, First Set of Requests to Admit, and First Set of Production Requests upon Phernetton. On April 9, 2014, Phernetton filed a "Response to Admit" in which he stated that he would "give some of a little of answer" to Lowell's Request to Admit. Phernetton admitted to Lowell being his only place of employment during the specified time frame. He further stated that he elected not to be deposed. Phernetton explained that he would not respond to the discovery requests or submit to a deposition because he was prohibited under the Health Insurance Portability and Accountability Act (HIPAA), the Social Security Act, the Constitution, and federal tax laws. He also claimed that he would commit perjury if he was required to submit to a deposition.
Prior to August 6, 2014, Lowell had twice noticed Phernetton's deposition. Phernetton refused to respond and canceled at the last minute. On July 3, 2014, Keck sent Phernetton an email asking Phernetton to provide dates that he was available for a deposition to take place in Hammond, Indiana. Keck advised Phernetton that if he failed to appear or failed to answer, he would file a motion asking the court to dismiss his claim. Phernetton responded with the above stated reasons for being unable to attend the deposition. Keck unilaterally selected August 6, 2014 to conduct Phernetton's deposition and served him notice of the date. Phernetton responded that he could not attend and filed a motion to continue his deposition. The court did not rule on Phernetton's motion by August 6, 2014. Lowell refused to reschedule the deposition and instructed Phernetton to appear.
Phernetton did appear at his deposition on August 6, 2014 but refused to answer several questions. After approximately one hour, Phernetton informed Lowell's counsel that he was declaring the deposition over. Lowell's counsel warned Phernetton that if he terminated the deposition without cause he would file a motion asking that the case be dismissed due to Phernetton's continued refusal to cooperate in discovery. Phernetton left and filed a document entitled "Response to Deposition" on August 8, 2014. In it, he stated that he elected to stop his deposition due to the questions Keck was asking. He complains that the questions were irrelevant and that Keck had not provided him with evidence showing that there is a Medicare lien.
On August 12, 2014, the court ruled on the motions Lowell filed concerning the problems the parties were facing during discovery. The court instructed Phernetton that his objections were meritless, that he must provide responses to Lowell's discovery requests or raise a valid objection, and that he must submit to a deposition. Specifically, the court explained that the Medicare lien was not relevant to this action. The court gave Phernetton 14 days to provide responses to Lowell's Requests to Admit, Interrogatories, and Request for Production and advised Phernetton that failure to comply with discovery may result in sanctions. Phernetton also was directed to provide his initial disclosures by this date. As of the date Lowell filed the present motion, September 4, 2014, Phernetton had not served his responses to Lowell's first set of discovery and had failed to provide his initial disclosures. Phernetton filed a response to Lowell's motion, stating that Lowell did not try to re-schedule his deposition and that he will attend another deposition and have other witnesses present.
On September 24, 2014, Attorney Benjamin Fryman entered an appearance on behalf of Phernetton and filed a motion for partial relief of the court's August 12, 2014. In it, Phernetton asks for an additional 30 days to respond to the outstanding discovery requests.
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 ...