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Fair Housing Center of Central Indiana, Inc. v. Smitley

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

January 10, 2018

FAIR HOUSING CENTER OF CENTRAL INDIANA, INC., et al., Plaintiffs,
v.
CAROLYN SMITLEY, individually and as trustee of the Smitley Family Trust, Defendant.

          ENTRY ON PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT

          HON. WILLIAM T. LAWRENCE, JUDGE UNITED STATES DISTRICT COURT.

         This 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.[1]

         I. BACKGROUND

         The 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.

         Plaintiff 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 inquiry.

         On June 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 McGuffin.[2]

         On 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 McGuffin.

         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.

         The 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.

         With 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.

         Despite 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.

         On the 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 provided.

         Plaintiffs' 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 doctor.

         On 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 ...


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