Johnson v. Perez et al

Filing 242

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 5/13/2024. Mailed notice (ec )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY L. JOHNSON,
Plaintiff,
v.
OFFICER PEREZ, #10546, et al.,
Defendants.

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No. 12 CV 9225
Magistrate Judge Young B. Kim
May 13, 2024

MEMORANDUM OPINION and ORDER
Plaintiff brings claims of false arrest and malicious prosecution against three
Chicago police officers and the City of Chicago. Defendants move to strike Lonzo
Smith as a witness and preclude him from testifying in this case because his
disclosure was not timely, and the delay is neither substantially justified nor
harmless. Plaintiff opposes the motion. For the following reasons, the court denies
the motion but provides the relief specified below to minimize any harm Plaintiff
may have caused by his untimely disclosure:
Background
Plaintiff accuses Defendants of unlawfully arresting and detaining and then
maliciously prosecuting him “for crimes he did not commit,” which ultimately led to
nine years of incarceration. (R. 160, First Amend. Compl. ¶¶ 1, 27.) According to
Plaintiff, at about 4:45 p.m. on May 10, 2012, as part of “an ongoing conflict
between two street gangs,” a passenger in Plaintiff’s car, Tywan Mason, “shot and
killed William Junius and Lamont Matticx in front of a house located at 5358 South

Hoyne Avenue in Chicago.” (Id. ¶ 6.) Twelve shots were fired from Plaintiff’s car
during that incident, and Defendants arrested Plaintiff that same day. (Id. ¶ 17.)
Plaintiff was indicted, and in December 2016 he was convicted of first-degree
murder and sentenced to life in prison. (Id. ¶ 26.)
Plaintiff maintained his innocence, however, explaining that he “operated a
freelance taxi service” at the time of the May 2012 shooting and was not a member
of or associated with any gangs. (Id. ¶¶ 8, 9.) He also says he did not know that
Mason was affiliated with a gang and had never seen him with a gun before that
day.

(Id. ¶¶ 9, 14.)

Nine years after the shooting, in May 2021, the Illinois

Appellate Court overturned Plaintiff’s conviction, finding that his race “was the
impetus for the case against” him, and there was “no reliable eyewitness testimony”
or other evidence to support the conviction. (Id. ¶¶ 20, 23, 30-34, Ex. 1.)
In this case, the court ordered fact discovery to close on November 24, 2023,
and emphasized that the deadline would “not be extended unless the parties [could]
demonstrate that they [were] diligent in their efforts to complete fact discovery.”
(R. 199.) On August 26, 2023, after noting the parties’ lack of diligence, the court
affirmed that the November 24, 2023 deadline was “firm” and whatever discovery
was “left undone by then [would] remain so.” (R. 203.)
Then, on October 23, 2023, the parties jointly moved for an extension of time
to complete discovery. (R. 210, Jt. Mot.) The court denied the motion, noting that
the parties had completed only one deposition since the court’s August 26, 2023
order, and that “[p]oor planning does not amount to good cause.” (R. 211.) Fact

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discovery closed as scheduled on November 24, 2023, although the court allowed a
few depositions to proceed after the deadline because of scheduling issues.
(See R. 223; R. 224; R. 225.)
More than two months after the close of fact discovery, on January 31, 2024,
Plaintiff served a supplemental Rule 26(a)(1)(A) disclosure, identifying Smith as a
fact witness for the first time. (R. 233, Defs.’ Jt. Mot. at 4, Ex. A.) Plaintiff never
identified Smith in his interrogatory answers, despite being asked to identify
witnesses with knowledge of, and with whom he communicated regarding,
allegations in this case.

(Id. at 4, Exs. B, C.)

Defendants object to this late

disclosure.
Analysis
Federal Rule of Civil Procedure 16(b)(1) requires the court to “issue a
scheduling order” setting deadlines for completing different stages of the case, and
Rule 16(b)(4) permits modification of that schedule “only for good cause and with
the judge’s consent.” In turn, Rule 16(f)(1)(C) allows the court to sanction a party
who “fails to obey” such an order.
Rule 26(a)(1)(A)(i) requires a party to disclose “the name and, if known, the
address and telephone number of each individual likely to have discoverable
information—along with the subjects of that information—that the disclosing party
may use to support its claims or defenses . . . unless the use would be solely for
impeachment.” See David v. Caterpillar, 324 F.3d 851, 856 (7th Cir. 2003). A party
must supplement or amend such disclosures “in a timely manner” if “incomplete or

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incorrect, and if the additional corrective information has not otherwise been made
known to the other parties during the discovery process or in writing.” Id.
Rule 37(c)(1) ensures compliance with Rule 26(a) by permitting the sanction
of exclusion for an untimely disclosure “unless the failure was substantially
justified or is harmless.” Id. at 856-57; Johnson v. C.R. Bard, Inc., 77 F.4th 641,
646 (7th Cir. 2023) (stating that under Rule 37(c)(1), the “sanction of exclusion is
automatic and mandatory unless the sanctioned party can show that its violation of
Rule 26(a) was either justified or harmless” (citation omitted)). The district court
has “broad discretion” in determining whether sanctions are warranted for a
Rule 26(a) violation. David, 324 F.3d at 857. Explicit findings by the court are not
necessary, but in deciding whether to impose sanctions the court may consider:
“(1) the prejudice or surprise to the party against whom the evidence is offered;
(2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to
the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence
at an earlier date.” Id.
Here, Defendants argue that the court should strike Smith as a witness and
bar him from testifying because Plaintiff failed to timely disclose him—and this
failure is unjustified and harmful to Defendants. (R. 233, Defs.’ Jt. Mot.) Plaintiff
does not dispute that his disclosure was untimely, nor could he. He waited until
nearly two months after the close of fact discovery to identify Smith as a witness
and, as such, violated Rules 16(f)(1)(C) and 26(a) and (e). (See id. at 3-4, Ex. A.)

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The key inquiry for the court thus turns on whether Plaintiff’s failure is
substantially justified or harmless.
As to substantial justification, Defendants argue that they made clear
throughout discovery that Plaintiff’s purported gang membership and relationship
with Mason are central issues of their defense and, as such, Plaintiff was “on notice”
of their theory of defense. (Id. at 5.) Defendants further point out that Plaintiff
never sought leave of court to disclose Smith after the fact discovery deadline. (Id.)
And Defendants assert that Plaintiff bears the burden of demonstrating that he
could not have identified Smith or supplemented his Rule 26(a) disclosures before
that deadline—a standard Plaintiff has not satisfied. (Id. at 5-6.)
Plaintiff responds that he had “an honest belief” that Smith, a Colorado
resident, would not be available to testify and that his testimony would not be
relevant to claims or defenses in this case. (R. 236, Pl.’s Resp. at 1-2, 5.) However,
once Plaintiff learned during fact discovery that Defendants intend to portray him
as a gang member associated with Mason, Plaintiff realized he needed a witness to
attest to his non-gang status—and Smith indicated he would be available to testify
on Plaintiff’s behalf. (Id. at 2-3.) Plaintiff represents that he “only intends to admit
[] Smith’s testimony in the event that Defendants introduce evidence” regarding
whether Plaintiff “was in a gang and in that context, the extent of [Plaintiff’s]
relationship with” Mason. (Id. at 5 (“Smith’s testimony would have the limited
purpose of rebutting Defendants[’] arguments on those topics.”).)

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Given these

circumstances, Plaintiff claims the untimely disclosure of Smith has not resulted in
prejudice or surprise to Defendants. (Id. at 5-6.)
Despite Plaintiff’s representations, the court finds that he could have—and
should have—disclosed Smith as a witness during fact discovery, especially given
the court’s repeated admonitions that fact discovery would not be extended past the
November 24, 2023 deadline.

(R. 203; R. 211.)

In his complaint, Plaintiff

repeatedly asserts that he was not affiliated with gangs, (see, e.g., R. 160, First
Amend. Compl. ¶¶ 5, 8, 19, 20, 23), and during fact discovery, Defendants sought to
refute these allegations, (see R. 233, Defs.’ Jt. Mot. at 5-6). As such, the court
agrees with Defendants that “[t]here is simply no justification for disclosing []
Smith at this juncture.” (R. 233, Defs.’ Jt. Mot. at 6.) The untimely disclosure no
doubt surprised Defendants and hampered any efforts they would have made to
question witnesses about Smith.
With respect to harm, Defendants claim that, if Plaintiff had timely disclosed
Smith, they would have asked Plaintiff during his deposition: who Smith is; what he
knew about “the information in the disclosure [and] . . . his connection . . . to other
witnesses”; where Smith resides; and whether he has documents relevant to the
parties’ claims or defenses, including communications with Plaintiff.

(Id. at 7.)

Given that fact discovery is now closed, Defendants contend they cannot cure the
prejudice resulting from Plaintiff’s disregard of the court’s scheduling order. (Id. at
7-8); David, 324 F.3d at 857.

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Plaintiff responds that the court could redress any prejudice to Defendants by
reopening discovery “for the limited purpose of permitting Defendants” to depose
Smith. (R. 236, Pl.’s Resp. at 6-7.) Plaintiff agrees to “make all reasonable efforts”
to ensure Smith appears “voluntarily” for a deposition. (Id. at 7.) Because no trial
date has been set in this case, Plaintiff asserts there will be no disruption. (Id. at
8.) And Plaintiff contends that he did not exhibit bad faith in disclosing Smith as a
witness after the close of discovery. (Id. at 8-9.) Taken together, Plaintiff argues
that the factors for determining harm under Rule 37(c)(1) weigh in his favor. (Id. at
9); see also David, 324 F.3d at 857.
As other courts in this district have noted, however, “[l]ate disclosure is not
harmless within the meaning of Rule 37 simply because there is time to reopen or to
extend discovery.” Hard Surface Sols., Inc. v. Sherwin-Williams Co., 271 F.R.D.
612, 617 (N.D. Ill. 2010); Dunn v. Brown, No. 20 CV 5645, 2022 WL 19323, at *3
(N.D. Ill. Jan. 3, 2022) (same). Instead, “it is the court’s prerogative—indeed, its
duty—to manage its caseload and to set and enforce discovery and other significant
deadlines.” Hard Surface Sols., 271 F.R.D. at 617. Plaintiff cannot simply ignore
these deadlines “and then demand[] that the court and the opposing party
restructure the discovery schedule to accommodate the violation.”

Id.; see also

Dunn, 2022 WL 19323, at *3 (“Deadlines are not suggestions to be taken lightly or
complied with only as a matter of choice.”).
Here, Plaintiff’s indifference toward the court’s scheduling order was not
harmless, as it precluded Defendants from questioning Plaintiff about Smith during

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his deposition. Nevertheless, because no trial date has been set and any harm to
Defendants may be mitigated, the court reluctantly denies Defendants’ motion.
That said, exercising its broad discretion under Rule 16(f)(1)(C) and Rule 37(c)(1) to
mitigate the harm, level the playing field, and preserve the importance of complying
with court deadlines, the court permits Defendants to re-depose Plaintiff for up to
90 minutes, so that they may inquire about Smith and the significance of his
testimony in this case. Plaintiff is responsible for reimbursing Defendants for any
reporter appearance fees and any other out-of-pocket costs related to this second
deposition. The court also permits Defendants to serve a subpoena on Smith for his
deposition, and grants Defendants permission to complete this deposition at any
time but no later than 60 days of the trial.

Plaintiff must provide Defendants

Smith’s address and any other contact information and help ensure Smith appears
for his deposition once he is subpoenaed.

If Smith does not appear for his

deposition, he is barred from offering any testimony in this case.
To further minimize the harm to Defendants, Plaintiff is barred from offering
any affidavit from Smith unless Defendants deposed him prior to submitting his
affidavit. To be clear, if Defendants do not depose Smith before filing their motion
for summary judgment, Plaintiff may not use Smith’s testimony when responding to
that motion. Plaintiff is also barred from offering Smith’s deposition transcript as
evidence in this case unless Defendants agree to such use. Granting Plaintiff the
ability to offer Smith’s affidavit or use his deposition transcript as trial evidence

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because Smith is an unavailable witness would amount to excusing Plaintiff from
failing to comply with the court’s scheduling order without good cause.
Conclusion
For the foregoing reasons, Defendants’ motion to strike is denied.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge

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