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Rasor v. Indiana Steel Fabricating, Inc.

United States District Court, S.D. Indiana, Terre Haute Division

July 31, 2018

CARLTON L. RASOR, Plaintiff,


          Hon. William T. Lawrence, Judge

         This cause is before the Court on several motions filed by Defendant Teamsters Local Union No. 716 (“Union”) and Defendant Indiana Steel Fabricating, Inc. (“Indiana Steel”). The motions are fully briefed and the Court, being duly advised, rules as follows.


         Each Defendant has filed a motion for sanctions seeking dismissal of this case with prejudice and an award of fees and costs. See Dkt. Nos. 72 and 74. The Court denied Indiana Steel's previous motion to dismiss for failure to prosecute, but did so “without prejudice, in that the Defendant may reassert the arguments set forth in the motion in any new motion to dismiss for failure to prosecute in the event that the Plaintiff does not fully cooperate in the future.” Dkt. No. 54. The Defendants assert that the Plaintiff's failure to cooperate has continued, making dismissal appropriate at this time. Indiana Steel also has filed a motion entitled Motion for Leave to File Supplemental Reply in Support of Its Second Motion to Dismiss (Dkt. No. 92). That motion is granted, and the Court has considered all of the parties' filings related to that motion in making this ruling.

         The instant motions were prompted by the Plaintiff's failure to appear at a settlement conference before the Magistrate Judge on October 23, 2017. The Plaintiff did, in fact, appear, but he was over an hour late, and (not surprisingly) the Magistrate Judge had excused everyone else before he arrived. There is nothing to suggest the Plaintiff's failure to appear on time at the settlement conference was motivated by a desire to inconvenience the Defendants or the Magistrate Judge; it appears to have been caused by an unfortunate set of circumstances. Whether some or all of those circumstances were within the Plaintiff's control, and whether lesser sanctions might be appropriate, is an issue the Court will leave to the Magistrate Judge to decide, inasmuch as the conference was before him and he has issued an order to show cause with regard to the issue. However, the Court finds that the Defendants have not demonstrated that the ultimate sanction of dismissal with prejudice is warranted.

         In addition to the Plaintiff's failure to appear on time for the settlement conference, Indiana Steel points to what it characterizes as additional failures to cooperate in discovery since the Court's denial of the motions to dismiss as support for its motion for sanctions. Specifically, Indiana Steel points to the following deposition testimony by the Plaintiff as demonstrating that he failed to comply with his discovery obligations:

Q: When did the Teamsters tell you that you didn't have insurance?
A: . . . I would have to refer to my notes before I was 100 percent accurate, but I would say it was no longer than a month, maybe two.
Q: What notes are you talking about?
A: Well, you know, just notes that I would have in a notebook that I would, you know, I would feel that would be important to this case, you know, I might would jot down stuff that I-so I wouldn't remember-so I wouldn't forget so I could come and talk to my lawyer about it.
Q: Okay. Have you produced any of these notes in discovery?
A: No, because I just really kind of just started kind of keeping these notes because my original notebook was left at Indiana Steel and I was not able to go back and recover my personal property. So when I ended up getting Mr. Frey, then, through my investigation from the Internet and watching tutorials about what I should be doing-this is my lawyer-at that point, then I start trying to keep, you know, little notes that what-in case I might have forgot to tell Mr. Frey something I would, you know, jot it down and if I was at home and just happened to remember it, like, you know, this would be something that my lawyer needs to know.
Q: So this is information that you've shared with your lawyer.
A: Actually, no, I haven't gave my lawyer my notebook yet because I don't- I would not-I would think that there's still information coming in that I would need to put in the those notes, but, I mean, I guess I can provide him with, you know, pages out of that, but I would like to continue to keep some form of a timeline on certain events in this case. So then in-you know in the future, then I could give them to my lawyer.
Q: Have you told your lawyer that you're keeping this timeline?
A: Yes, I have.
Q: Okay.
A: But I would say I only told my lawyer about this timeline maybe about a week and a half ago.
Q: Okay. And when did you start keeping it?
A: Maybe about March of this year. Well, I-I had problems with my first attorney. So my first attorney just wasn't doing me how I felt that she should have been doing me. So since it had been so long since I, you know, talked to my lawyer about it, or talked to anyone, really, within detail about it, I just started kind of jotting down stuff . . . [s]o I would remember it so I wouldn't forget when I went to go interview for new lawyers. . . .
Q: . . . You started keeping this timeline or notes before-during the period that you were not represented by a lawyer.
A: Right.

Dkt. No. 75-1 at 5. During the course of his deposition, the Plaintiff also testified that “I want to tell you that I have copies of my grievances at home but I've moved about four times so some of my stuff is boxed up and some of my stuff is boxed up and put in storage. So I will go through that and attempt to locate those.” Id. at 6. He further explained:

I would have to go to, like, my wife's house and look at her garage and get my stuff out, and then start going through the boxes that I had to box up because I know I kept all that stuff. I kept everything that I think I needed to give to my lawyer, and that would be something that I would think I would need to give to my lawyer.

Id. at 7. After the deposition, Indiana Steel “contacted Plaintiff's counsel by email and requested that Plaintiff supplement his production of documents with the items he referred to in his deposition, correct any incorrect or incomplete information in his interrogatory responses, and certify which responses (if any) were already accurate and complete.” Dkt. No. 75 at 4. Ultimately the Plaintiff responded that he had nothing more to produce. Indiana Steel characterizes these events as follows: “[Plaintiff's] deposition testimony explicitly references multiple documents relevant to his claims, and responsive to ISF's discovery requests, that he has apparently failed to produce to his attorney or ISF.” Id. at 7. In fact, however, the Plaintiff has represented that he does not have any such documents. He did not produce any of the missing written grievances in response to the Defendants' motions for summary judgment, and, were he to locate such documents and seek to use them at trial, his burden of demonstrating that the Court should permit him to do so would be very high. Thus, at this point, the issue is not whether the Plaintiff's case should be dismissed for failure to produce the grievances, but whether his case should be dismissed because his deposition testimony suggests that his search for responsive documents prior to his deposition might not have been as thorough as it should have been. Given that there does not appear to be any willfulness on the part of the Plaintiff, and given the lack of any prejudice to the Defendants, the Court finds that dismissal on that basis is not appropriate.

         With regard to the notes the Plaintiff testified that he took to aid him in discussion with his legal (or potential) legal counsel, Indiana Steel does not identify the discovery request to which they were responsive. In any event, the Plaintiff's testimony makes it clear that the notes were prepared “in anticipation of litigation or for trial, ” and Indiana Steel does not argue that they are nonetheless discoverable. See Federal Rule of Civil Procedure 26(b)(3) (describing showing that must be made before documents prepared in anticipation of litigation or for trial are discoverable). Indiana Steel's argument, then, is that this case should be dismissed because the Plaintiff did not realize that the notes he took to aid him in discussing his case with his legal counsel were responsive to a discovery request and should have been listed on a privilege log. Again, any such failure was not prejudicial to the Defendants (who, again, now know about the notes and do not argue that they are discoverable), and does not warrant the sanction of dismissal.

         Nor do the two documents at issue in Indiana Steel's supplement to its motion for sanctions warrant dismissal. That filing is based on the fact that the Plaintiff submitted a note from his physician and a few of his pay stubs from Indiana Steel in response to the Defendants' motions for summary judgment that he had not produced during discovery. As discussed below, none of those documents were considered by the Court in ruling on the summary judgment motions; therefore, the Defendants were not prejudiced by the Plaintiff's attempt to use them.

         The Court appreciates the Defendants' perspective that the discovery process in this case has been more onerous than it should have been. It appears that the litigation of this case has been complicated by the Plaintiff's apparently less than ideal working relationship with his first attorney, by the fact that the Plaintiff is difficult to reach by telephone, and by the fact that the Plaintiff may not have always fully understood his obligations. The Federal Rules of Civil Procedure provide mechanisms for ameliorating any prejudice and/or expense that results from a party's failure to comply with his discovery (or other) obligations and, of course, there are times when dismissal of an action for such failures is an appropriate remedy. That is a drastic remedy, however, and one that the Court believes should be reserved for instances in which the failure to cooperate appears to be an attempt to gain some advantage in the case or to intentionally increase the burden on the opposing parties, or in which the just resolution of the case has been entirely thwarted. See, e.g., Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 561 (7th Cir. 2011) (discussing factors to be considered before imposing “extraordinarily harsh sanction” of dismissal for want of prosecution); Collins v. Illinois, 554 F.3d 693, 696 (7th Cir. 2009) (noting that “to dismiss a case as a sanction for discovery abuse the court must only find that the party's actions displayed willfulness, bad faith, or fault, ” and “the sanction imposed must be proportionate to the circumstances”). Viewing the circumstances of this case as a whole, the Court does not believe that dismissal is an appropriate sanction. Accordingly, the Defendants' motions for sanctions are DENIED.[1]


         A. Applicable Standard

         Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.”). A party who bears the burden of proof on a particular issue may not rest on its pleadings, but must show what evidence it has that there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and “the court is not required to scour the record in search of evidence to defeat a motion for summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).

         B. Background Facts

         The background facts of record, viewed in the light most favorable to the non-moving party, Plaintiff Carlton L. Rasor, are as follows. Additional facts of record are included, where relevant, in the Discussion section below.

         1. Facts Relating to Rasor's Job Classification

         Rasor began working at Indiana Steel in February 2013. At that time he was a temporary employee; his employer was a staffing company called Forge Staffing.

         The hourly employees at Indiana Steel were represented for purposes of collective bargaining by the Union.[2] The relevant collective bargaining agreements (“CBA”)[3] between Indiana Steel and the Union contained four job classifications with corresponding wage rates: (1) general labor;[4] (2) machine operator; (3) truck driver; and (4) layout, which includes welders. The general labor job classification was the entry-level, lowest skilled position in the shop; the machine operator and layout classifications were the higher skilled positions in the shop; and the truck driver classification was not an in-shop position. The CBAs further required Indiana Steel to abide by “all State and Federal laws concerning discrimination against any employee for Union activity, race, creed, religion, sex or age.” Dkt. No. 81-1 at 38; id. at 71 (adding local laws and “disability or other characteristic protected by law”).

         In late 2012, four members of the management team at Indiana Steel-Mike Jordan, James Bennett, Tim Nelson, and Ben Strange-purchased the company from the family that had founded it in 1959.

         On March 19, 2013, while Rasor was employed by Forge Staffing and working at Indiana Steel, Rasor signed an application for membership in the Union and a dues check-off authorization form. The membership application and dues check-off form were completed by someone at Indiana Steel and presented to Rasor for his signature by Indiana Steel co-owner Ben Strange. The membership application listed Rasor's occupation as “machine operator.” Dkt. No. 78-3 at 4. The Union did not receive this form until June 2013.

         Rasor became an employee of Indiana Steel on April 3, 2013. According to a written “Hire-On Agreement, ” Rasor was hired by Indiana Steel as “a full-time employee at a job classification of general labor” at the general labor rate of pay. Dkt. No. 78-3 at 1. However, Rasor believed that he was a machine operator after he was hired, despite what his Hire-On Agreement said, because of the reference to machine operator on the Union membership application that Indiana Steel completed and gave him to sign and because Ben Strange, the Indiana Steel employee ...

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