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McNamee v. Family Focus, Inc.

United States District Court, N.D. Indiana, Hammond Division

October 6, 2016

COREY MCNAMEE, Plaintiff,
v.
FAMILY FOCUS, INC., Defendant.

          FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B) & (C)

          PAUL R. CHERRY MAGISTRATE JUDGE.

         This 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.

         On 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).

         BACKGROUND

         Defendant, in the instant motion, verified under penalties of perjury that the following representations are true.

         At a 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.

         On May 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.

         Defendant 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 undelivered.

         As of 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 motion.

         On July 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.

         ANALYSIS

         Defendant 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).

         Defendant 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.” Id.

         The 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 ...


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