Kuntz v. Camelot Care Centers Inc

Filing 18

ORDER: Plaintiff's Objection to the Report and Recommendation (d/e 16 ) is DENIED. The Report and Recommendation (d/e 15 ) is ADOPTED AS MODIFIED. Defendant's Motion to Dismiss (d/e 12 ) is DENIED IN PART. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 12/1/2017. (MJC, ilcd)

E-FILED

Monday, 04 December, 2017 12:34:13 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CARLA J. KUNTZ,

)
)
Plaintiff,
)
)
v.
)
)
CAMELOT CARE CENTERS, INC., )
)
Defendant.
)

No. 16-cv-3307

ORDER
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on the Report and
Recommendation of United States Magistrate Judge Tom SchanzleHaskins (d/e 15). Judge Schanzle-Haskins recommends that this
Court DENY IN PART Defendant Camelot Care Centers, Inc.’s
Motion to Dismiss Plaintiff’s Complaint but sanction Plaintiff Carla
Kuntz and her counsel for failure to comply with the Scheduling
Order and failure to comply with the discovery process in this case.
On November 9, 2017, Plaintiff filed her Objection to the Report and
Recommendation. On November 24, 2017, Defendant filed a
response.

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Upon careful review of the record and the pleadings, the Court
ADOPTS the Report and Recommendation with minor adjustments
to the timing for producing documents and scheduling Plaintiff’s
deposition and ordering Plaintiff’s attorney to pay Defendant’s
reasonable expenses, including attorney’s fees, as a sanction,
pursuant to Federal Rule of Civil Procedure 37(b)(2)(C).
I. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 72(b)(3), this Court
determines “de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Although this Court does not
need to conduct a new hearing on the entire matter, the Court must
give “fresh consideration to those issues to which specific objections
have been made.” 12 Charles Alan Wright, Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 3070.2 (2d ed. 1997);
Wasserman v. Purdue Univ. ex rel. Jischke, 431 F. Supp. 2d 911,
914 (N.D. Ind. 2006).
If no objection is made, or if only a partial objection is made,
the Court reviews the unobjected to portions for clear error.
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
This Court may “accept, reject, or modify the recommended
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disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).
II. BACKGROUND
The Magistrate Judge accurately set forth the background of
this case, and neither party objects to the Magistrate Judge’s
factual findings. In sum, Plaintiff failed to serve her initial
disclosures in violation of the Court’s Scheduling Order, failed to
respond to Defendant’s First Request for Production of Documents
and First Set of Interrogatories, and failed to cooperate with
scheduling Plaintiff’s deposition. Defendant filed a Motion seeking
dismissal of Plaintiff’s Complaint pursuant to Federal Rule of Civil
Procedure 37(b)(2)(A)(v) and attorney’s fees and costs pursuant to
Federal Rule of Civil Procedure 37(a).
On October 26, 2017, the Magistrate Judge issued a Report
and Recommendation. The Magistrate Judge recommends that this
Court deny the Motion in part but sanction Plaintiff and her
attorney for failure to comply with the Scheduling Order and failure
to cooperate in the discovery process. The Magistrate Judge noted
that dismissal was a drastic sanction and that the circumstances
did not warrant such a drastic sanction. Instead, the Magistrate
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Judge recommended the following sanctions: that this Court (1) find
that Plaintiff has waived all objections to Defendant’s First Request
for Production of Documents and First Set of Interrogatories; (2)
order Plaintiff to produce, by November 15, 2017, her initial
disclosures and complete responses to Defendant’s First Request for
Production of Documents and First Set of Interrogatories; (3) order
Defendant to, by November 15, 2017, provide to the Court and
Plaintiff three dates between November 21, 2017 and December 15,
2017 for the taking of Plaintiff’s deposition; order Plaintiff to select
one of those three dates and to notify the Court and Defendant’s
counsel of her selection by November 17, 2017; and order Plaintiff’s
deposition to take place in this District on that date; (4) order,
pursuant to Federal Rule of Civil Procedure 37(c)(1)(A), that Plaintiff
and her counsel to pay Defendant’s reasonable expenses, including
attorney’s fees, for the filing of the Motion to Dismiss.
On November 9, 2017, Plaintiff filed her objections to the
Report and Recommendation.
III. ANALYSIS
Plaintiff does not object to the recommendation that she be
ordered to provide her discovery responses and initial disclosures
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by November 15, 2017. Plaintiff does object, however to (1) the
mechanism the Magistrate Judge recommended for setting
Plaintiff’s deposition and (2) the recommendation that attorney’s
fees should be assessed under Federal Rule of Civil Procedure
37(c)(1)(A).
A.

The Court Will Modify the Deposition Schedule as
Requested by Defendant
Plaintiff first asserts that the time parameters recommended

by the Magistrate Judge are too aggressive. Plaintiff requests that
the Court give the parties a short window of time to see whether
they can agree to a date, including a date after December 15, 2017,
for Plaintiff’s deposition.
Defendant responds that the Scheduling Order establishes
December 15, 2017 as the deadline for depositions, which is why
the Magistrate Judge used that date as the deadline. Defendant
asserts, however, that as of November 24, 2017, Plaintiff has still
failed to provide a single document to Defendant or furnish a
written response to Defendant’s document requests. Def.’s Resp. at
5. Defendant, therefore, proposes that the deadline for completing
Plaintiff’s deposition be extended, contingent upon Plaintiff
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providing Defendant with fully complete document responses,
including the actual documents, and allow Defendant adequate
time to review the material that it receives. Id. Alternatively,
Defendant asks that the Court reconsider dismissing Plaintiff’s
Complaint with prejudice for “her continued contumacious
conduct.” Id.
The Court is greatly concerned that Plaintiff has, according to
Defendant, still failed to produce a single document to Defendant or
furnish a written response to Defendant’s document request. The
Court will, however, grant Defendant’s request that the deadline for
completing Plaintiff’s deposition be extended.
The Court extends the deadline to complete Plaintiff’s
deposition to January 31, 2018. Plaintiff shall provide complete
document responses, including the actual documents, to Defendant
on or before December 8, 2017. Defendant shall advise the Court,
by December 15, 2017, whether the production is complete. If
production is complete, Defendant shall, by December 22, 2017,
provide the Court and Plaintiff with three dates between January 2,
2018 and January 31, 2018 for taking Plaintiff’s deposition.
Plaintiff shall select one of those three dates and notify the Court
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and Defendant’s counsel of her selection by December 29, 2017.
The deposition shall take place in this District on the date selected.
Plaintiff is advised that any additional failure to comply with the
Scheduling Order or failure to cooperate in the discovery process in
this case could result in dismissal of the case with prejudice.
B.

The Award of Attorney’s Fees is Amended To Reflect Rule
37(b)(2)(C) as the Basis of the Award
Plaintiff also objects to the award of attorney’s fees. Plaintiff

asserts that Rule 37(c), the basis for the Magistrate Judge’s
recommendation, does not justify an award of attorney’s fees
because Defendant moved to dismiss Plaintiff’s Complaint pursuant
to Rule 37(b)(2)(A)(v) rather than to compel discovery under Rule
37(a)(1). Plaintiff asserts that if an award of attorney’s fees is
appropriate, it should be made under Rule 37(b), not to Rule 37(c).
Pl.’s Obj. at 4. Plaintiff also argues that, in light of the other
sanctions imposed and the circumstances of this case, the award of
attorney’s fees is not appropriate.
Plaintiff’s argument is not entirely clear. Under Federal Rule of
Civil Procedure 37(b)(2)(C), the Court must order “the disobedient
party, the attorney advising that party, or both to pay the
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reasonable expenses, including attorney’s fees, caused by the
failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed.R.Civ.P.
37(b)(2)(C). Here, Plaintiff’s attorney, as the attorney advising
Plaintiff, failed to comply with the Court’s Scheduling Order by
failing to timely provide Plaintiff’s initial disclosures to Defendant.
Plaintiff has not pointed to any evidence that would show that
counsel’s failure to comply was substantially justified or that an
award is unjust. Therefore, the Court orders, pursuant to Federal
Rule of Civil Procedure 37(b)(2)(C), that Plaintiff’s attorney pay
Defendant’s reasonable expenses, including attorney’s fees, for filing
the Motion to Dismiss.
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff’s Objection to the Report and Recommendation
(d/e 16) is DENIED.
(2) The Report and Recommendation (d/e 15) is ADOPTED AS
MODIFIED:
(a) The Court extends the deadline to complete Plaintiff’s
deposition to January 31, 2018. Plaintiff shall provide complete
document responses, including the actual documents, to Defendant
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on or before December 8, 2017. Defendant shall advise the Court,
by December 15, 2017, whether the production is complete. If
production is complete, Defendant shall, by December 22, 2017,
provide the Court and Plaintiff with three dates between January 2,
2018 and January 31, 2018 for the taking of Plaintiff’s deposition.
Plaintiff shall select one of those three dates and notify the Court
and Defendant’s counsel of her selection by December 29, 2017.
The deposition shall take place in this District on the date selected.
(b) Plaintiff’s counsel is ordered to pay Defendant’s reasonable
expenses, including attorney’s fees, for Defendant’s filing of the
Motion to Dismiss. This sanction is imposed against Plaintiff’s
counsel pursuant to Federal Rule of Civil Procedure 37(b)(2)(C).
Defendant shall file its motion for reasonable expenses, including
attorney’s fees, with supporting documentation on or before
December 14, 2017. The request may include fees and costs
incurred in responding to Plaintiff’s Objection to the Report and
Recommendation.
(3) Defendant’s Motion to Dismiss (d/e 12) is DENIED IN
PART.

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ENTER: December 1, 2017
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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