United States District Court, N.D. Indiana, Hammond Division
FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B)
R. CHERRY MAGISTRATE JUDGE.
matter is before the Court on a Verified Motion to Dismiss
Pursuant to Federal Rules of Civil Procedure Rule 37(d) and
41(b) [DE 50], filed by Defendant Family Focus, Inc., on
August 11, 2016. Plaintiff Corey McNamee, pro se,
has filed no response, and the time to do so has passed.
September 1, 2016, District Court Judge James T. Moody
entered an Order [DE 52] referring this matter to the
undersigned Magistrate Judge for a report and recommendation
on the instant motion pursuant to 28 U.S.C. §
636(b)(1)(B). This Report and Recommendation constitutes the
undersigned Magistrate Judge's proposed findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
in the instant motion, verified under penalties of perjury
that the following representations are true.
preliminary pre-trial conference held on October 1, 2015, the
Court set case management deadlines for this litigation,
including a discovery deadline of July 15, 2016.
27, 2016, Defendant propounded interrogatories and requests
for production of documents on Plaintiff. Responses to these
discovery requests were due June 29, 2016. Also on May 27,
2016, Defendant noticed Plaintiff for a deposition to take
place on July 7, 2016. In accordance with Northern District
of Indiana Local Rule 26-2(2)(A), the discovery was also
filed with the Court.
sent the discovery requests and notice of deposition by
regular and Certified Mail to Plaintiff's address as
listed on the docket and neither copy was returned as
the date the instant motion was filed, Plaintiff had not
provided responses to the discovery. Plaintiff failed to
appear for his deposition, as evidenced by the transcript of
the deposition, which Defendant attached to the instant
13, 2016, Defendant sent correspondence by regular and
Certified Mail to Plaintiff regarding Plaintiff's failure
to appear for his deposition and respond to the discovery.
Defendant sent this correspondence to Plaintiff's address
as listed on the docket and also to a previous address given
by Plaintiff. The correspondence sent by Certified Mail has
been returned from both addresses marked as unclaimed and
unable to forward. The correspondence sent by regular mail
has not been returned from either address.
argues that this cause of action should be dismissed under
Federal Rule of Civil Procedure 41(b). Rule 41(b) provides
that, “[i]f the plaintiff fails to prosecute or to
comply with these rules or a court order, a defendant may
move to dismiss the action or any claim against it.”
Fed.R.Civ.P. 41(b). Under Rule 41(b), a court should only
dismiss a case when “there is a clear record of delay
or contumacious conduct, or when other less drastic sanctions
have proven unavailing.” Brown v. Columbia Sussex
Corp., 664 F.3d 182, 190 (7th Cir. 2011) (citing
Maynard v. Nygren, 332 F.3d 462, 467 (7th Cir.
2000)); see also Salata v. Weyerhaeuser Co., 757
F.3d 695, 699 (7th Cir. 2014). In most cases, the district
court should warn the plaintiff that such a sanction may be
imposed. See Williams v. Chi. Bd. of Educ., 155 F.3d
853, 857 (7th Cir. 1998); see also Ball v. City of
Chi., 2 F.3d 752, 759-60 (7th Cir. 1993) (indicating
that “[t]here should be an explicit warning in every
case”). In considering such a dismissal, a district
court should consider numerous factors, including the
frequency and magnitude of the plaintiff's conduct, the
prejudice to the defendant, the disruption to the orderly
administration of the court's calendar, and the merits of
the underlying litigation. See Williams, 155 F.3d at
857; Bolt v. Loy, 227 F.3d 854, 856 (7th Cir. 2000).
also argues that this cause of action should be dismissed
under Federal Rule of Civil Procedure 37. Rule 37 provides
that “[t]he court where the action is pending may, on
motion, order sanctions if . . . a party . . . fails, after
being served with proper notice, to appear for that
person's deposition; or . . . a party, after being
properly served with interrogatories under Rule 33 or a
request for inspection under Rule 34, fails to serve its
answers, objections, or written response.” Fed.R.Civ.P.
37(d)(1)(A). The available sanctions are any of those listed
in Rule 37(b)(2)(A)(i)-(vi). Fed.R.Civ.P. 37(d)(3).
“Instead of or in addition to these sanctions, the
court must require the party failing to act, the attorney
advising that party, or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless
the failure was substantially justified or other
circumstances make an award of expenses unjust.”
decision of whether to award sanctions under Rule 37 is a
matter within the Court's discretion. In re
Golant, 239 F.3d 931, 937 (7th Cir. 2001). In deciding
to award sanctions under Rule 37, a court is not required to
choose the least severe sanction available; rather, the
sanction that the Court selects “must be one that a
reasonable jurist, apprised of all the circumstances, would
have chosen as proportionate to the infraction.”
Id. (quoting Salgado v. Gen. Motors Corp.,
150 F.3d 735, 739 n.5 (7th Cir. 1998)). The sanction of
dismissal is to be used only in extreme situations.
Id. (citing Webber v. Eye Corp., 721 F.2d
1067, 1069 (7th Cir. 1983)). Dismissal under Rule 37