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Ameristar Casino East Chicago, LLC v. Ferrantelli

Court of Appeals of Indiana

March 8, 2019

Ameristar Casino East Chicago, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc., Appellants-Defendants,
v.
Joseph Ferrantelli, Sr., Appellee-Plaintiff

          Interlocutory Appeal from the Lake Superior Court, The Honorable Bruce D. Parent, Judge Trial Court Cause No. 45D04-1610-CT-189

          Attorney for Appellants Edward W. Hearn Johnson & Bell, P.C. Crown Point, Indiana

          Attorneys for Appellee David W. Westland Carolyn A. Thiess Westland & Bennett, PC Hammond, Indiana

          CRONE, JUDGE.

         Statement of the Case

         [¶1] This case illustrates the dangers of noncompliance with our liberal and self- effectuating discovery process. Ameristar Casino East Chicago, LLC, Ameristar East Chicago Holdings, LLC, and Pinnacle Entertainment, Inc. (collectively "Ameristar"), bring this interlocutory appeal from the trial court's denial of a motion to set aside a default judgment entered against Ameristar and in favor of Joseph Ferrantelli, Sr., on Ferrantelli's negligence claim against Ameristar. A default judgment on Ameristar's liability was entered by the trial court as a sanction based on the court's finding that Ameristar engaged in a continuous, ongoing, and purposeful lack of cooperation with the discovery process. On appeal, Ameristar contends that the trial court abused its discretion both in issuing the default judgment and in declining to set it aside. Finding no abuse of discretion, we affirm and remand for further proceedings.

         Facts and Procedural History

         [¶2] On March 8, 2016, eighty-six-year-old Ferrantelli was injured when he fell while getting on an escalator with a wheelchair at the Ameristar Casino in East Chicago.[1] On October 16, 2016, Ferrantelli filed his complaint against Ameristar claiming that Ameristar "failed to properly advise him" and "failed to clearly mark the elevators, among other things." Appellants' App. Vol. 2 at 22-23. Ameristar filed its answer denying the allegations in the complaint, and asserting affirmative defenses including comparative fault and assumption of risk.

         [¶3] In November 2016, Ferrantelli sent written discovery requests to Ameristar requesting, among other things: (1) all statements made by Ferrantelli and obtained by Ameristar; (2) every written statement and document obtained from any person having personal knowledge of the accident; and (3) the identity of each Ameristar employee or agent, or other person with knowledge of the accident. In response, Ameristar produced one incident report and identified only four individuals with knowledge of the accident. Ameristar indicated that it was not in possession of any statement made by Ferrantelli.

         [¶4] On May 4, 2017, Ferrantelli sent Ameristar a written request for deposition dates for the four identified individuals as well as Ameristar's Trial Rule 30(B)(6) representative.[2] Ameristar did not respond. On May 10, counsel for both parties discussed by telephone the request for deposition dates; however, dates were not provided by Ameristar. On May 24, Ferrantelli again sent a written request for deposition dates and received no response from Ameristar. Between July 6 and July 31, 2017, numerous additional oral and email requests were made by Ferrantelli to obtain deposition dates. Ameristar did not respond other than to provide the identity of its 30(B)(6) representative.[3] On August 7, 2017, Ferrantelli sent a third written request for deposition dates. Ferrantelli advised Ameristar that he would be filing a motion to compel if Ameristar failed to set deposition dates within ten days. Ameristar did not respond.

         [¶5] Almost one month later, on September 5, 2017, Ferrantelli filed a motion to compel discovery that included a request for attorney's fees. Ameristar did not file a response to the motion. Discovery closed on September 28, 2017. The trial court held a hearing on the motion to compel on December 13, 2017. Ferrantelli's counsel explained and produced documentation to the trial court regarding his countless attempts over a protracted period to get depositions scheduled to no avail. He argued that Ameristar was purposely evading and delaying discovery (specifically the depositions) due to Ferrantelli's advanced age, and that the continued delay could ultimately result in Ferrantelli being unable to see the case go to trial. Ameristar's counsel "[k]ind of apologized" but essentially "gave no reason for [Ameristar's] failure to cooperate." Tr. Vol. 2. at 37. Following the hearing, the court reopened and "straightened the discovery problems, received promises [from Ameristar] of future compliance with the discovery process, set the matter for a compliance hearing, and held open the attorney fee request pending cooperation moving forward." Appellants' App. Vol. 2. at 66. The trial court ordered Ameristar to provide deposition dates by January 1, 2018, noting that it appeared that the case "has been sandbagged with an older Plaintiff." Tr. Vol. 2 at 8. The court warned Ameristar's counsel that the court expected Ameristar to be "extremely cooperative here" and also twice declared, "This Judge hates discovery fights." Id. at 9, 10.

         [¶6] Ameristar did comply, at least in part, with the court's order, and the depositions of four of the five requested witnesses were completed on January 16, 2018. However, during those depositions, Ferrantelli's counsel learned the identities of several witnesses not previously disclosed by Ameristar, and it was further revealed that Ameristar was in possession of multiple documents, as well as recorded statements, that were responsive to Ferrantelli's earlier discovery requests but never produced. As a result of the information obtained during the depositions, on January 26, 2018, Ferrantelli sent correspondence to Ameristar requesting the additional discovery. Ameristar did not respond. Accordingly, Ferrantelli filed a second motion to compel and request for sanctions on February 16, 2018. Ferrantelli argued that Ameristar continued to "purposefully hindering the progression of this case" with its "abuse of the discovery process, and continuous failure to comply with [Ferrantelli's] discovery requests, as well as instructions given by [the trial court.]" Appellants' App. Vol. 2 at 61. Accordingly, Ferrantelli requested, among other things, entry of an order striking Ameristar's answer to the complaint and an order entering a default judgment in favor of Ferrantelli. Ameristar filed no response to the motion to compel.

         [¶7] On March 6, 2018, the trial court entered its order on Ferrantelli's second motion to compel and for sanctions. Specifically, the court noted that Ameristar had filed no response to Ferrantelli's allegations of "withholding of discovery, the purposeful creation of the passage of time between reporting and disclosure to again 'slow play' the discovery process, and a refusal to follow-up these late disclosures with reasonable information related to witnesses that have since left [Ameristar's] employment." Id. at 66. As such, the court ...


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