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Wine & Canvas Development LLC v. Weisser

United States District Court, S.D. Indiana, Indianapolis Division

November 10, 2014

WINE & CANVAS DEVELOPMENT LLC, Plaintiff,
v.
THEODORE WEISSER, and CHRISTOPHER MUYLLE, Defendants. CHRISTOPHER MUYLLE, Counter Claimant,
v.
WINE & CANVAS DEVELOPMENT LLC, Counter Defendant. CHRISTOPHER MUYLLE, Third Party Plaintiff,
v.
TAMARA SCOTT, DONALD MCCRACKEN, and ANTHONY SCOTT, Third Party Defendants.

ENTRY ON DEFENDANT THEODORE WEISSER'S FAILURE TO SHOW CAUSE

TANYA WALTON PRATT, District Judge.

This Court held a final pretrial conference on October 22, 2014, to assist the parties and the Court in preparing for trial, which is scheduled to begin on November 17, 2014. The parties were to appear and participate in the final pretrial conference. Defendant Theodore Weisser ("Mr. Weisser") a pro se defendant, failed to appear and participate in the final pretrial conference. On October 22, 2014, the Court ordered Mr. Weisser to show cause within seven days, in writing, why he should not be sanctioned under Federal Rule of Civil Procedure 16(f) for his failure to appear (Filing No. 396). Mr. Weisser failed to respond in writing to the Court's Order.[1] For the following reasons, the Court finds Mr. Weisser in default as to liability for the claims asserted against him in Plaintiff Wine & Canvas Development LLC's ("WNC") Amended Complaint (Filing No. 36).

I. DISCUSSION

Federal Rule of Civil Procedure 16(f)(1) states:

On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney:

(A) fails to appear at a scheduling or other pretrial conference;
(B) is substantially unprepared to participate-or does not participate in good faith-in the conference; or
(C) fails to obey a scheduling or other pretrial order.

The Rule 37(b) sanctions available to the Court under Rule 16(f)(1) include "rendering a default judgment against the disobedient party." Fed.R.Civ.P. 37(b)(2)(A)(vi).

"Courts are given wide latitude in fashioning appropriate sanctions, ' but the sanctions must be reasonable under the circumstances." TruFoods, LLC v. Rigdon, 2012 U.S. Dist. LEXIS 26014, at *4 (S.D. Ind. Feb. 2, 2012) (quoting e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011)). Default judgment is one of the most severe sanctions available to the court, so it should be imposed only when there has been "willfulness, bad faith, or fault." e360 Insight, 658 F.3d at 642. Bad faith is "conduct which is either intentional or in reckless disregard of a party's obligations to comply with a court order." Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992). "[W]illfulness is shown in a party's continuing disregard for the litigation or for the procedures of the court." Davis v. Hutchins, 321 F.3d 641, 646 (7th Cir. 2003).

Here, Mr. Weisser has disregarded many Court Orders, the procedures of the Court, and the litigation, which has been prejudicial to Plaintiff's ability to proceed with an efficient prosecution of its case and prejudicial to the Court's orderly administration of the docket. Because of his pro se status, the Court has shown some leniency, however, procedural rules cannot be ignored even for a pro se litigant. On October 22, 2012, Mr. Weisser filed an answer to WNC's amended complaint (Filing No. 51) and asserted two counterclaims in his answer. Mr. Weisser has had almost no involvement in this litigation since that filing more than two years ago. Specifically, the Court considers the following circumstances:

1. Failure to identify and attach agreement and obey court order.

WNC filed a motion for a more definite statement from Mr. Weisser, explaining that Mr. Weisser's counterclaim referred to a licensing agreement between the parties, but Mr. Weisser did not identify the agreement or attach it to his counterclaim (Filing No. 53). Because Mr. Weisser did not include or identify the licensing agreement, WNC could not adequately answer Mr. Weisser's counterclaim. Id. On July 2, 2013, the Court granted WNC's motion in part, ordering Mr. Weisser to "identify and attach the licensing agreement referenced in Count I of his Counter-Claim." (Filing No. 112 at 3.) Mr. Weisser has not complied ...


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