United States District Court, N.D. Indiana, Hammond Division
ROBERT L. MILLER, Jr., District Judge.
A hearing was held in this action on November 18, 2014 on the plaintiff's motion to reopen discovery and the defendants' motion to dismiss the complaint based on Mr. Cox's many delays in participating in the discovery process and his failure to appear for his deposition on three separate occasions. On November 19, the court entered an order denying Mr. Cox's request to reopen discovery, concluding that Mr. Cox hadn't shown excusable neglect for failing to complete discovery within the time allotted, and denying the defendants' motion to dismiss. Instead, the court ordered that Mr. Cox make himself available for his deposition "at such time and date as the attorneys find convenient, but in no event more than fourteen days from the date of [the] order." Op. and Ord. (Nov. 19, 2014), at 4.
The defendants are again before the court asking that this case be dismissed pursuant to Federal Rules of Civil Procedure 41(b), 37(b)(2), and 37(d) based on Mr. Cox's continued failure to comply with court orders, specifically noting Mr. Cox's non-compliance with the court's November 19 order that he appear for his deposition. The defendants report that their counsel tried to schedule Mr. Cox's deposition by emailing and telephoning plaintiff's counsel on November 21 and 24, but got no response to either inquiry. The defendants conclude that "[a]fter almost two years of litigation, more than 315 days of discovery, and three canceled depositions, plaintiff has still not appeared for his deposition. Therefore, plaintiff's complaint should be dismissed." Mot., at 1.
Mr. Cox says in response that his counsel didn't receive an e-mail or a telephone call from defense counsel and didn't receive the court's November 19 Opinion and Order until December 3, 2014. According to Mr. Cox, his counsel's office "was partially closed November 19-20 and fully closed November 21, 2014 due to a large fundraising event. Apparently on November 21, 2014, defense counsel had attempted to contact [plaintiff's] counsel by email, but, again, the office was closed and email was not accessible." Resp., at 1 n.1. Mr. Cox says defense counsel should have issued a notice of deposition had the defendants "truly wished to take [his] deposition." Resp., at 3. He suggests, too, that defense counsel should have faxed or mailed correspondence, called his counsel's cell phone, and/or had defense counsels' staff contact his counsel's staff to schedule the deposition rather than attempting to contact his counsel directly.
Mr. Cox says he tried to comply with the court's order but defense counsel rejected his December 3 offer to make himself available for his deposition on December 4 (which would have been within the fourteen day period), December 5, or on another date. According to Mr. Cox, defense counsel "waited until the 11th hour to contact [his] counsel directly and then refused to conduct the deposition within the 14 day period - essentially hoping that [he] would fail'." Resp., at 3. Mr. Cox maintains his case shouldn't be dismissed because he tried to schedule his deposition as the court ordered; he asks that he be permitted to appear at a deposition "as coordinated by [a] deposition notice, to be scheduled by defense counsel within an allotted time frame." Resp., at 4.
Sanctions Under Rule 37
An award of sanctions under Rule 37 for failure to cooperate in discovery or appear at a deposition requires a finding that the offending party's actions "displayed willfulness, bad faith, or fault." Collins v. Illinois , 554 F.3d 693, 696 (7th Cir. 2009). "Bad faith'... is characterized by conduct which is either intentional or in reckless disregard of a party's obligations to comply with a court order. Fault, ' by contrast, doesn't speak to the noncomplying party's disposition at all, but rather only describes the reasonableness of the conduct - or lack thereof - which eventually culminated in the violation." Marrocco v. General Motors Corp. , 966 F.2d 220, 224 (7th Cir. 1992). Rule 37 sanctions may include dismissal of the action. See Fed.R.Civ.P. 37(b)(2)(A); Fed.R.Civ.P. 37(d)(3).
The record in this case shows the following:
- the court issued orders to show cause on July 19 and July 23, 2013 for Mr. Cox's failure to serve the individual defendants pursuant to Federal Rule of Civil Procedure 4(m). Mr. Cox didn't respond to the show cause orders, so the court dismissed his claims against the individual defendants on August 21, 2013. The next day, Mr. Cox filed a motion to vacate the dismissal and reinstate his claims against those defendants, explaining that his counsel "inadvertently" failed to file the proof of service forms before the court's dismissal of those defendants.
- at the October 24, 2013 preliminary pretrial conference, the parties agreed that all discovery would be completed by May 30, 2014. A week after the close of discovery, Mr. Cox requested that the discovery deadline be extended to August 29, which the court granted for the sole purpose of taking Mr. Cox's deposition; included the court's order was a warning that further requests to extend the discovery deadline would be "viewed with disfavor."
- six weeks after the August 29 discovery deadline passed, Mr. Cox filed a motion asking that discovery be reopened and the deadline be extended again to permit the parties to take Mr. Cox's deposition. Hearing on that motion was held on November 18, and the court's order denying the motion and directing that Mr. Cox's deposition take place within fourteen days was issued on November 19.
The defendants report that, to date, Mr. Cox has conducted no discovery, his responses to their written discovery were submitted five months late, and his initial disclosures were served on their counsel a week after the close of discovery. Mr. Cox hasn't challenged the defendants' statements in this regard.
Missing one deadline "fails to rise to the level of long-standing or contumacious conduct warranting dismissal, " Kruger v. Apfel , 214 F.3d 784, 787 (7th Cir. 2000), but the record of this action shows that in the almost two years the case has been pending, Mr. Cox hasn't undertaken any discovery, cooperated with the defense in their attempts to conduct discovery, or taken any other action to prosecute his case. And while the court doesn't believe any bad faith has been shown on the part of Mr. Cox or his counsel, Mr. Cox's continued delays and lack of interest in pursuing his claims ...