United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING PLAINTIFF'S MOTION TO SET
ASIDE/VACATE JUDGMENT [DKT. 44]
EVANS BARKER, JUDGE
6, 2019, this Court adopted Magistrate Judge Baker's
Report and Recommendation, [Dkt. 41], on Defendant's
Motion for Sanctions, [Dkt. 26.] Plaintiff was ordered to
reimburse Defendant for attorney fees and to supplement his
responses to interrogatories and requests for production.
[Dkt. 42]. This cause is now before the Court on
Plaintiff's Motion to Set Aside/Vacate Judgment, [Dkt.
44], in which Plaintiff seeks to vacate the sanctions against
reasons set forth herein, Plaintiff's motion is
pro se initiated this civil rights action on January
19, 2018, alleging that his employer, Furniture Discounters,
Inc., had discriminated against him on the basis of his race.
[Dkt. 1]. On January 29, 2019, Defendant filed its First
Motion for Sanctions (or in the Alternative to Compel
Production). [Dkt. 26.] Defendant argued that Plaintiff was
untimely in his litigation and discovery duties. For example,
Plaintiff had not provided his initial disclosures nor filed
his preliminary witness and exhibit lists in the timeframe
contemplated by the Case Management Plan. Defendant also
argued that Plaintiff's responses to Defendant's
interrogatories and requests for production were
“severely lacking” because he had failed to
identify if there were any relevant documents that had once
been in his possession but no longer were; provide copies of
all exhibits he intended to produce as trial; produce
communications between Plaintiff and Defendant's
representatives; and more [Dkt. 27].
Plaintiff was evasive in his deposition on December 29, 2018,
which was also the final day for fact discovery. At his
deposition, Plaintiff proclaimed he had “a
thousand” emails between himself and representatives of
Defendant that had been withheld despite specific
discovery-based interrogatories aimed at eliciting such
information. Plaintiff also stated that he had failed to
provide relevant evidence to the Indiana Civil Rights
Commission. However, Plaintiff refused to identify or discuss
the details of this information. Plaintiff then stated that
he had also withheld this same information in the present
case. Again, he refused to discuss what the information
entailed and began to grow hostile, informing defense counsel
that he was “about finished” and counsel would
“be asking questions to an empty chair.” When
questioned if he had intentionally concealed the information,
Plaintiff attempted to explain that he “just came
further questioning, Plaintiff declared he “was
done.” Defense counsel informed Plaintiff that
Defendant would seek sanctions for attorney fees if he
terminated the deposition before the completion of questions,
to which Plaintiff replied, “Have a good day.”
Following the deposition, Plaintiff (untimely) produced
twenty-four pages of documents.
noncompliance prompted Defendant to file its Motion for
Sanctions on January 29, 2019, in which it requested that
Plaintiff's complaint be dismissed. In the alternative,
Defendant sought an order requiring Plaintiff to fully
respond to its discovery requests, to sit for a deposition
after the documents had been produced, and pay for
Defendant's fees incurred in preparing for the deposition
and filing the Motion for Sanctions.
April 15, 2019, following a hearing on Defendant's Motion
for Sanctions in which Plaintiff failed to appear, Magistrate
Judge Baker issued his Report and Recommendation on
Defendant's motion. [Dkt. 41]. Magistrate Judge Baker
found that Plaintiff had either failed to file/serve items
required by the Case Management Plan or filed/served them
late, and had provided incomplete responses to Defendant'
requests for production and interrogatories. “Most
troubling, ” said Magistrate Judge Baker, was
Plaintiff's unilateral termination of his deposition.
Judge Baker concluded it “would be within the
Court's discretion to dismiss the action, ” but,
because Plaintiff is proceeding pro se and had not
wholly ignored his discovery obligations, lesser sanctions
would be the more appropriate remedy. Accordingly, he
recommended that the Court order Plaintiff to reimburse
Defendant its costs ($2250) incurred as a result of
Plaintiff's misconduct. He also recommended ordering
Plaintiff to supplement his inadequate responses to
Defendant's discovery requests; specifically,
interrogatory nos. 3 and 13, and requests for production nos.
2 and 6. Judge Baker recommended that the matter be dismissed
should Plaintiff fail to comply with these terms.
parties were afforded due opportunity pursuant to statute and
the rules of this Court to file objections to Magistrate
Judge Baker's Report and Recommendation; none were filed.
On May 6, 2019, having carefully considered Magistrate Judge
Baker's findings and recommendations, we adopted his
Report and Recommendation. Plaintiff was ordered to reimburse
Defendant $2250 and supplement his responses to
Defendant's interrogatories and requests for production
within 30 days. We warned Plaintiff that his failure to
comply with the terms of the Order would result in his case
being dismissed with prejudice. Still, Plaintiff failed to
comply, and, on June 11, 2019, Defendant filed its Notice of
Non-Compliance. Defendant stated that the 30-day timeframe
had expired, but that Plaintiff had not reimbursed Defendant
or supplemented the discovery responses. [Dkt. 43].
Accordingly, Defendant sought dismissal of this action.
next day, June 12, 2019, Plaintiff filed his Motion to Set
Aside/Vacate Judgment. [Dkt. 42]. Plaintiff states that he
moved in January 2019 following a separation with his spouse,
resulting in a delay of his receipt of Defendant's Motion
for Sanctions that prevented him from timely objecting.
Plaintiff also argues that Defendant improperly moved for
sanctions without making reasonable efforts to resolve the
issues with Plaintiff, per our local rule 7.1(g)(1).
Plaintiff claims that Defendant did not contact him to
reschedule the deposition, and that he had no indication that
his discovery responses were lacking until Magistrate Judge
Baker's Report and Recommendation. Finally, Plaintiff
reminds the Court he is proceeding in forma pauperis
and asserts that he does not have the means to reimburse
as argued by Defendant, the record does not reflect
Plaintiff's rendition of the litigation, and importantly,
the record does not support his contention that he was not
afforded an ample opportunity to object to Defendant's
Motion for Sanctions. Defendant's motion was filed on
January 29, 2019. The parties, including Plaintiff, attended
a telephonic settlement conference on February 1, 2019, where
the motion, and specifically Plaintiff's alleged failure
to produce his discovery and complete his deposition, was
discussed. In the conference, Plaintiff was advised that he
was to respond to the Motion for Sanctions by February 15,
2019, should he wish to object to the allegations therein.
The deadline came and went without a response from Plaintiff
until February 19, 2019, when he requested a seven-day
extension. [Dkt. 34]. Magistrate Judge Baker granted the
request and then some, providing Plaintiff an additional
twenty-one days to respond. [Dkt. 38]. Still, no response was
record before us clearly undermines Plaintiff's assertion
that he was unaware of the grounds for Defendant's Motion
for Sanctions as well as his argument that he was not
afforded an ample opportunity to respond. As Magistrate Judge
Baker stated in his Report and Recommendation, while
Plaintiff was not obligated to object to the Motion for
Sanctions, his failure to respond or appear at the hearing on
the motion ...