United States District Court, S.D. Indiana, Indianapolis Division
FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., et al., Plaintiffs,
CAROLYN SMITLEY, individually and as trustee of the Smitley Family Trust, Defendant.
ENTRY ON PLAINTIFFS' MOTION FOR DEFAULT
WILLIAM T. LAWRENCE, JUDGE UNITED STATES DISTRICT COURT.
cause is before the Court on the Plaintiffs' Motion for
Default Judgment (Dkt. No. 39). The Court, being duly
advised, now GRANTS the Plaintiffs'
motion for the reasons set forth below.
Plaintiffs filed this action on April 19, 2016. On May 19,
2016, Defendant Carolyn Smitley filed a motion for extension
of time to file an answer and eventually filed an answer on
June 15, 2016. The Case Management Plan (“CMP”)
approved by the Court on July 20, 2016, included the
following language: “Upon approval, this Plan
constitutes an Order of the Court. Failure to comply with an
Order of the Court may result in sanctions for contempt, or
as provided under Rule 16(f), to and including dismissal or
default.” Dkt. No. 18 at 11.
McGuffin served her First Set of Interrogatories, First Set
of Requests for Admission, and First Set of Requests for
Production on July 14, 2016, with responses due August 13,
2016. No responses were received by the deadline. Plaintiff
McGuffin passed away on August 4, 2016, and Plaintiff Fair
Housing Center served the discovery items (Plaintiff Fair
Housing Center's First Set of Interrogatories, First Set
of Requests for Admission, and Second Set of Requests for
Production) on August 22, 2016, with responses due on
September 21, 2016. Smitley failed to respond by that
deadline. Plaintiffs' counsel sent an email follow-up to
Smitley's counsel on September 28, 2016, but
Smitley's counsel did not respond to that follow-up
27, 2016, Plaintiff McGuffin served a Notice of Deposition on
Smitley for August 23, 2016. Having received no communication
since the notice was served, Plaintiffs' counsel sent an
email follow-up to Smitley's counsel on August 18, 2016,
asking whether Smitley would attend the deposition.
Smitley's counsel responded the same day, questioning why
the deposition should move forward without a plaintiff, as
McGuffin had passed away on August 4, 2016. Plaintiffs'
counsel responded the same day, reminding Smitley's
counsel that the Fair Housing Center was also a plaintiff in
the lawsuit. Further, Plaintiffs' counsel had previously
informed Smitley's counsel of an intent to file a motion
pursuant to Federal Rule of Civil Procedure 25(a) to
substitute the appropriate representative of the estate of
August 19, 2016, Plaintiffs' counsel again asked
Smitley's counsel whether Smitley planned to attend the
noticed deposition. Smitley's counsel indicated that a
response would be provided by August 20, 2016. Having
received no response, Plaintiffs' counsel emailed
Smitley's counsel on August 20, 2016, and August 22,
2016. The latter communication stated that since no alternate
dates or times were proposed, Plaintiffs expected that
Smitley and Smitley's counsel would be present. On the
afternoon of August 22, 2016, Smitley's counsel
responded, repeating his position from August 18, 2016, that
there was no plaintiff and that Smitley would not be
attending the deposition. Smitley's counsel also noted
that the deposition was noticed by the now-deceased Plaintiff
then re-served the Notice of Deposition in Plaintiff Fair
Housing Center's name on August 22, 2016, for September
12, 2016. On September 7, 2016, having received no response
from Smitley's counsel since the notice was served,
Plaintiffs' counsel sent a follow-up email to
Smitley's counsel. Plaintiffs' and Smitley's
counsel spoke on the telephone on September 8, 2016, and
Smitley's counsel expressed a concern that Smitley's
pain medication would make it difficult for her to
participate in the deposition. On September 9, 2016,
Plaintiffs' counsel agreed to reschedule the noticed
deposition and proposed two dates for the rescheduled
deposition: September 20, 2016, or September 30, 2016.
Plaintiffs' counsel requested that Smitley's counsel
provide an update after speaking with Smitley's physician
about her ability to fully participate in the deposition.
Plaintiffs' counsel also communicated a willingness to
hold the deposition at Smitley's residence. Having
received no follow-up correspondence, Plaintiffs' counsel
sent an email to Smitley's counsel on September 28, 2016,
requesting that Smitley's counsel relay what was learned
from Smitley's physician regarding her ability to
participate in a deposition. Smitley's counsel provided
no response to that follow-up inquiry.
Plaintiffs filed a Motion to Compel on November 17, 2016,
concerning Smitley's failure to respond to the written
discovery requests and refusal to schedule Smitley's
deposition. Smitley did not respond to the Motion to Compel.
The Magistrate Judge granted the Motion to Compel on December
7, 2016, ordering Smitley to answer the August 22, 2016,
discovery requests no later than December 21, 2016; make
herself available for a deposition between December 28, 2016,
and January 13, 2017; and provide Plaintiffs, within five
days of the Order, with three different dates between that
date range that Smitley would be available for deposition.
regard to the deposition, the Order noted that if Smitley
failed to provide dates within five days, the Plaintiffs
could choose a date for the deposition and issue a notice.
Neither Smitley nor Smitley's counsel made contact with
the Plaintiffs' counsel within five days of the Order.
Accordingly, on December 21, 2016, the Plaintiffs served a
Notice of Deposition on Smitley for January 12, 2017. Also on
December 21, 2016, a settlement conference at which both
Smitley and Smitley's counsel appeared was held.
the Court's order, Smitley failed to provide any
responses to the outstanding discovery on December 21, 2016.
Smitley's counsel indicated that responses would be
provided “sometime before the deposition.” Dkt.
No. 40-1 at 1. Plaintiffs' counsel asked that responses
be provided as soon as possible so that they could be
reviewed in advance of the deposition.
afternoon of January 11, 2017, the day before the deposition
was to be held, Smitley's counsel called Plaintiffs'
counsel to state that Smitley would be unable to attend the
following day. Smitley's counsel indicated that Smitley
was on her way to the hospital to be treated for pneumonia
and that he was unsure how long she would be admitted.
Plaintiffs' counsel requested a physician or hospital
statement to document Smitley's condition and
hospitalization, and Smitley's counsel agreed to obtain
and provide a statement. Plaintiffs' counsel also
reminded Smitley's counsel about the responses to the
outstanding discovery. Smitley's counsel followed-up that
phone call with an email and again indicated that he would
provide a statement from Smitley's doctor. He also
acknowledged that discovery responses still needed to be
counsel responded to that email, acknowledging that the
January 12, 2017, deposition would be rescheduled.
Plaintiffs' counsel requested that Smitley provide three
dates that she would be available for the deposition by
January 16, 2017, and again requested responses to the
outstanding discovery and a statement from Smitley's
January 18, 2017, having received no proposed deposition
dates and no update on Smitley's condition or physician
statement, Plaintiffs' counsel sent a follow-up email.
Smitley's counsel responded that day and indicated that
Smitley was in and out of the hospital. On January 24, 2017,
having not heard from Smitley's counsel since January 18,
Plaintiffs' counsel sent another email. In addition to
requesting the outstanding discovery and ...