United States District Court, S.D. Indiana, Terre Haute Division
CARLTON L. RASOR, Plaintiff,
INDIANA STEEL FABRICATING, INC., et al., Defendants.
ENTRY ON PENDING MOTIONS
William T. Lawrence, Judge
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.
MOTIONS FOR SANCTIONS AND RELATED MOTIONS
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.
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
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
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
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
A: Yes, I have.
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
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
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.
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.
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
MOTIONS FOR SUMMARY JUDGMENT
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).
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.
Facts Relating to Rasor's Job
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.
hourly employees at Indiana Steel were represented for
purposes of collective bargaining by the Union. The relevant
collective bargaining agreements
(“CBA”) between Indiana Steel and the Union
contained four job classifications with corresponding wage
rates: (1) general labor; (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”).
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.
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.
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 ...