Hood v. RR Donnelley & Sons

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS 24 entered by Judge Colin Stirling Bruce on 12/12/2013. Defendant's Motion to Dismiss 19 is GRANTED. Plaintiff's pro se complaint 1 is dismissed with prejudice. This case is terminated. see written order. Copy of order mailed to pro se plaintiff, Frederick J Hood, 612 N. Hamilton, Sullivan, IL 61951 (DS, ilcd)

E-FILED

Thursday, 12 December, 2013 03:23:57 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
______________________________________________________________________________
FREDERICK J. HOOD,
)
)
Plaintiff,
)
v.
)
)
Case No. 13-CV-2055
R.R. DONNELLEY & SONS,
)
)
Defendant.
)
ORDER

On November 1, 2013, Magistrate Judge David G. Bernthal filed a Report and
Recommendation (#24) in the above cause. Judge Bernthal recommended granting the
Motions to Dismiss (#19) filed by Defendant R.R. Donnelley & Sons. Judge Bernthal
carefully set out the history of the case and concluded that Plaintiff’s Complaint should be
dismissed, with prejudice, for two reasons. Judge Bernthal stated:
The Court recommends dismissal under Federal Rule of
Civil Procedure 37(d)(3) for Plaintiff’s failure to serve his
answers to Defendant’s Interrogatories and 37(b)(2)(A)(v) for
ignoring the Court’s order that Plaintiff serve his initial
disclosures and respond to Defendant’s written discovery
requests. To justify dismissal under Rule 37 as a sanction for
discovery violations, the Court must find that Plaintiff’s
discovery violations “displayed willfulness, bad faith, or fault”
and that dismissal is a proportionate sanction for the violations.
Collins v. Illinois, 554 F.3d 693, 696 (7th Cir. 2009). “Fault,” in
the context of discovery violations, refers to “objectively

unreasonable behavior.” Long v. Steepro, 213 F.3d 983, 987 (7th
Cir. 2000).

Plaintiff’s behavior here was objectively

unreasonable. Plaintiff did not abide by the discovery deadlines
to which he agreed, even when the Court ordered him to do so
and gave him additional time to comply. Plaintiff’s continued
failure to engage in discovery, even in the face of a Court order,
also makes dismissal a proportionate sanction.
Judge Bernthal also stated:
Alternatively, the Court recommends dismissal under
Rule 41(b) for failure to prosecute. Dismissal under Rule 41(b)
“should be used only in extreme situations, when there is a clear
record of delay or contumacious conduct.” Kasalo v. Harris &
Harris, Ltd., 656 F.3d 5575, 561 (7th Cir. 2011). There is a clear
record of delay in this case. Plaintiff has not complied with
discovery deadlines over the last several months, and he failed
to make himself available for the October 29, 2013, hearing that
he requested. It is not the responsibility of the Court or defense
counsel to chase Plaintiff down to secure his compliance with
discovery or his appearance at a hearing in federal court. The
Court does not consider Plaintiff’s phone call, placed several
hours after the October 29, 2013, hearing, to be an indication of
Plaintiff’s willingness to litigate his own case.

Rather,

Plaintiff’s various reasons for why he missed the hearing are
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consistent with Plaintiff’s overall failure to take his own
case—and the Court’s time—seriously.

It is Plaintiff’s

responsibility to prosecute his case by engaging in discovery and
complying with court orders, and the Court recommends
dismissal as a sanction for his failure to do so.
On November 13, 2013, a letter addressed to Judge Bernthal was received by the
court. The letter has been construed as an Objection to the Report and Recommendation
(#25). In the letter, Plaintiff asked that his case not be dismissed and apologized for missing
the scheduled hearing. Plaintiff again explained his reasons for missing the hearing. Plaintiff
stated that, for various reasons, “it slip[ped] my mind.”
This court has carefully reviewed Judge Bernthal’s thorough and well-reasoned
recommendation and Plaintiff’s pro se Objection. Following this court’s careful de novo
review, this court agrees with Judge Bernthal’s recommendation that Defendant’s Motion to
Dismiss (#19) should be granted. This court notes that, in his Objection, Plaintiff has
provided no explanation for his failure to comply with discovery deadlines and Judge
Bernthal’s order that he serve his initial disclosures and respond to Defendant’s discovery
requests by September 23, 2013. This court agrees with Judge Bernthal that dismissal is
warranted in this case because of Plaintiff’s continued failure to engage in discovery, even
in the face of a Court order, and because of Plaintiff’s overall failure to take his own
case—and the Court’s time—seriously.

IT IS THEREFORE ORDERED THAT:
(1) The Report and Recommendation (#24) is accepted by this court.
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(2) Defendant’s Motion to Dismiss (#19) is GRANTED. Plaintiff’s pro se Complaint
(#1) is dismissed with prejudice.
(3) This case is terminated.
ENTERED this 12th day of December, 2013.

s/COLIN S. BRUCE
U.S. DISTRICT JUDGE

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