Jump v. Montgomery County et al

Filing 107

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins, RE: Hearing held November 13, 2015. (LB, ilcd)

E-FILED

Friday, 20 November, 2015 02:43:44 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
KARI JUMP,
Plaintiff,
v.
MONTGOMERY COUNTY,
SHERIFF JIM VAZZI, in his
official and individual capacity,
RICK ROBBINS, KURT ELLER,
RICK FURLONG,
DOUG WHITE,
GREGORY NIMMO,
and MARY SHIPMAN,
in their individual capacities,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

No.13-cv-3084

OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
On November 13, 2015, the Court conducted a telephonic hearing in
this matter. The Plaintiff appeared by her attorney Dana Kurtz, and the
Defendants appeared by their attorney Karin Anderson. The Court issued
the following rulings on the motions pending before the Court.
I.

Defendants’ Emergency Motion to Compel the Deposition of
Plaintiff’s Expert and for Sanctions [94] (Motion 94)

Page 1 of 8

Defendants ask the Court to compel Plaintiff’s expert, Dr. Louise F.
Fitzgerald, Ph.D., to appear in Illinois for a deposition. Dr. Fitzgerald has
offices in Illinois, but resides in Florida. Generally, parties must conduct
depositions of non-party witnesses at the witness’ residence. See e.g.,
Yaskawa Electric. Corp. v. Kollmorgen Corp., 201 F.R.D. 443, 444 (N.D. Ill.
2001). In this case, however, Dr. Fitzgerald states that she can be in
Chicago, Illinois, the week of November 30, 2015. Plaintiff’s Response to
Defendants’ Motion for Sanctions and to Compel (DKT. 94) (d/e 96), Exhibit
1, Declaration of Louise F. Fitzgerald, ¶ 10. The Court therefore allows
Motion 94 in part. The Court directs the parties to conduct the deposition of
Dr. Fitzgerald at a mutually agreed time and place in the Chicago, Illinois,
metropolitan area during the week of November 30, 2015. The Defendants
would have been required to pay Dr. Fitzgerald’s mileage if they had
subpoenaed her. Fed. R. Civ. P. 45(b)(1). The Court therefore directs the
Defendants to pay Dr. Fitzgerald the cost of round trip economy class
airfare between her residence in Florida and Chicago, Illinois, in addition to
any amounts required for her time during the deposition. See Fed. R. Civ.
P. 26(b)(4)(E).

Page 2 of 8

II.

Defendants’ Motion to Enforce Settlement Agreement or in the
Alternative for Rule to Show Cause and for Sanctions [99]
(Motion 99)
Defendants ask the Court to enforce the parties’ settlement

agreement, or in the alternative sanction the Plaintiff for failing to attend the
Independent Medical Examination (IME) ordered by this Court. See
Opinion entered September 30, 3015 (d/e 92) (Opinion 92) (ordering
Plaintiff to attend and undergo an IME on October 19 and 20, 2015).
Plaintiff also asks the Court to enforce the settlement agreement.
The information presented to the Court, however, shows that no
settlement agreement exists. A settlement agreement is a contract and is
governed by principles of applicable state contract law. Laserage
Technology Corp. v. Laserage Laboratories, Inc., 972 F.2d 799, 802
(7th Cir. 1992). Any valid contract requires, among other things, a meeting
of the minds of the parties on the material terms. E.g., Abbott Laboratories
v. Alph Therapeutic Corp., 164 F.3d 385, 387 (7th Cir. 1999). In this case,
the Defendants sent a proposed settlement agreement to Plaintiff. Plaintiff
responded with a change in the language. Plaintiff proposed a modification
to Defendants’ proposed Paragraph 11entitled “Mutual NonPage 3 of 8

Disparagement.” Plaintiff proposed adding the phrase “Plaintiff and
Defendant MCSO, its agents, officers, and elective officials,” after the word
“parties.” Plaintiff’s Response to Defendants’ Motion to Enforce Settlement
Agreement or in the Alternative for Rule to Show Cause and for Sanctions
(DKT. 99) (d/e 100) (Plaintiff’s Response 100), Exhibit 1, Plaintiff’s Redline
of Defendants’ Proposed Settlement Agreement (Redline Agreement
Draft), ¶ 11. Defendants did not agree to the Plaintiff’s proposed
modification. The parties, therefore, never came to a meeting of the
minds, and so, never entered into a settlement agreement.
Plaintiff argues that the parties agreed on a mutual nondisparagement clause in Defendants’ original draft. Plaintiff notes that the
heading of the proposed paragraph 11 said Mutual Non-Disparagement
already. The additional language, therefore, was not a material change in
the proposed draft. The proposed draft, however, stated that headings
were not part of the agreement and could not be used to interpret the
agreement. Redline Agreement Draft, ¶ 19. Therefore, the heading cited
by Plaintiff was not part of the Defendants’ proposed agreement. The
parties did not agree on all the material terms. There was no settlement
agreement. Each party’s request that the Court enforce the settlement
agreement is denied.
Page 4 of 8

The Defendants’ alternative request for sanctions for Plaintiff’s failure
to appear at the IME is allowed in part. Plaintiff was ordered to appear and
she did not. The emails between the parties demonstrate that Defendants
did not agree to a delay in the IME, and Plaintiff did not move for any
modification of Opinion 92. See Motion 99, attached emails dated October
19, 2015. The Court, therefore, finds that Plaintiff and her counsel violated
Opinion 92. The remedies for violation of Opinion 92 compelling discovery
is governed by Rule 37(b). Fed. R. Civ. P. 37(b). Generally, the Court can
find a party in contempt for violating a discovery order; except, a party
cannot be held in contempt for failing to submit to a physical or mental
examination. Fed. R. Civ. P. 37(b)(2)(A)(vii). The Court, therefore, does
not find the Plaintiff or her counsel to be in contempt.
Instead of finding a person to be in contempt, the Court can award
Defendants’ attorney fees and costs incurred as a result of the Plaintiff’s
failure to comply with Opinion 92 unless the failure was substantially
justified or other circumstances make the award of expenses unjust. Fed.
R. Civ. P. 37(b)(2)(C). The Plaintiff’s failure to appear at the IME was not
substantially justified. She was ordered to attend, and the matter was not
yet settled. If she wanted to delay the IME due to settlement discussions,
she should have filed a motion. She did not. The failure to comply with
Page 5 of 8

Opinion 92 and attend the IME was not substantially justified. The award of
expenses is not unjust under these circumstances. The Plaintiff should
have appeared and has no excuse.
The Court orders the Plaintiff and her attorney to pay the Defendants’
attorney fees and costs incurred as a result of the Plaintiff’s failure to attend
the IME as ordered by Opinion 92. The Court directs Defendants to file a
detailed request for fees and expenses by December 2, 2015. The Plaintiff
is given fourteen days from the date of service to respond.
The Defendants also ask the Court to allow the Nonsupervisory
Defendants’ Motion for Summary Judgment (d/e 95) as a sanction. The
Court extended the time to file a response to the Nonsupervisory
Defendants’ Motion for Summary Judgment to November 20, 2015. Text
Order entered October 29, 2015. The Plaintiff’s response, therefore, is not
yet due. The Court denies the request for sanctions. The Plaintiff’s
response to Nonsupervisory Defendants’ Motion for Summary Judgment
remains due on November 20, 2015.
III.

Defendants’ Motion to Seal Documents Filed with the Court
(d/e 101) (Motion 101)
Defendants ask the Court to seal the documents attached to

Plaintiff’s Response 100. The request is denied. The documents attached
Page 6 of 8

are part of the parties’ settlement negotiations, but the documents are not
subject to any protective order and are not trade secrets or other
confidential material properly subject to non-disclosure. See e.g., Fed. R.
Civ. P. 26(c)(1)(G). Litigation is to be conducted in public, and absent good
cause, documents filed in federal court are to be public. See e.g., Citizens
First Nat. Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945-46
(7th Cir. 1999) (District Court must find good cause before sealing
documents filed in a case in federal court). The request to seal documents
is denied.
IV.

Plaintiff’s Motion to Withdraw as Counsel (d/e 103) (Motion 103)
Motion 103 is allowed. Attorney Erin L. Sostrock has left the firm

representing Plaintiff, Kurtz Law Offices, Ltd. Plaintiff remains represented
by attorneys Dana Kurtz and James Graham Vanzant of Kurtz Law Offices.
Attorney Sostrock is withdrawn as an attorney of record in this case.
THEREFORE, Defendants' Emergency Motion to Compel the
Deposition of Plaintiff's Expert and for Sanctions (d/e 94) and Defendants'
Motion to Enforce Settlement Agreement or in the Alternative for Rule to
Show Cause and for Sanctions (d/e 99) are ALLOWED in part and DENIED
in part; Defendants' Motion to Seal Documents Filed with the Court
(d/e 101) is DENIED; and Plaintiff's Motion to Withdraw as Counsel
Page 7 of 8

(d/e 103) is ALLOWED. The deadline for Defendant's Expert Disclosure
deadline is extended to December 30, 2015, and the deadline for
depositions of Defendants' experts is extended to January 30, 2016. Other
scheduling dates and deadlines remain unchanged.
ENTER: November 20, 2015

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

Page 8 of 8