Barrios v. Fashion Gallery, Inc.

Filing 22

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 11/3/2016:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GLORIA BARRIOS,
Plaintiff,
v.
FASHION GALLERY, INC. dba
RAINBOW SHOPS,
Defendant.

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No. 15 C 10193
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
The defendant has filed a motion to compel the deposition of the plaintiff and for an
extension of time to file dispositive motions. It appears from the motion that the mandatory
requirements of Local Rule 37.2 have not been complied with, Ossola v. American Express
Company, 2015 WL 993379, 1 (N.D.Ill. 2015), and that the plaintiff’s counsel has been less than
fully cooperative in setting a firm date for the plaintiff’s deposition. Finally, the movant has not
provided a courtesy copy of the motion (with exhibits) to the court despite the mandatory
requirements of Local Rule 5.2(f) and my standing order requiring that copies of any filings be
delivered to chambers contemporaneously with the filing. Still, the deposition of a party in any case
is of such obvious importance that these matters can occasionally be overlooked and the motion
resolved as a matter of fundamental fairness. After all, the days of trial by ambush long ago fell by
the wayside with the adoption of the Federal Rules of Civil Procedure. See the discussion in Jackson
v. N'Genuity, 2011 WL 1134302, at *1 (N.D. Ill. 2011). See also Swierkiewicz v. Sorema N.A., 534
U.S. 506, 512 (2002); Stout Risius Ross, Inc. v. People Care Holdings, Inc., 15 C 9298, 2016 WL
4593824, at *3 (N.D. Ill. 2016); Lancelot Investors Fund, L.P. v. TSM Holdings, Ltd., 2008 WL

1883435, 3-4 (N.D. Ill. 2008).
The facts are these. On February 22, 2016, the court adopted the discovery schedule proposed
by the parties, with fact discovery to close on July 20, 2016. [Dkt. # 11]. In the interim, the defendant
could not arrange for the deposition of the plaintiff. On May 18, the defendant’s counsel noted that
it was awaiting potential dates for the plaintiff’s deposition. No response was made or received to
the May 18 letter. Two months were left on the parties’ agreed (and court ordered) discovery
schedule. So far as the record reveals, apparently nothing was done until July 5, when the defendant
again wrote to plaintiff’s counsel noting their willingness to take the plaintiff’s deposition on August
4, 9 or 15. Discovery was to close on July 20 – before the date selected by defendant.
On July 26, 2016, defense counsel sent a notice of deposition calling for the plaintiff’s
deposition on September 16, 2016. This date was then canceled by plaintiff’s counsel, and no further
dates were provided. On October 17, defense counsel served another deposition notice calling for
the plaintiff’s deposition on October 21. Of course, discovery had closed on July 20, three months
before the date selected. None of the lawyers seemed to care or even to notice that fact,
notwithstanding that lawyers do not own the discovery schedule, are not at liberty to disregard one,
and certainly are not at liberty to disregard a court ordered schedule. Given these circumstances, the
current motion could easily be denied. See Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th
Cir. 2001)(no abuse of discretion to deny discovery motion filed after close of discovery); Justise
v. Zenith Logistics, Inc., 186 F. App'x 680, 683 (7th Cir. 2006)(“. . . we cannot conclude that it was
an abuse of discretion to deny [plaintiff’s] motion to compel given its dilatory filing.”); Haynes v.
Alliant Food Serv., Inc., 93 F. App'x 71, 73–74 (7th Cir. 2004)(“. . . rarely will we find an abuse of
discretion [denying a motion to compel] when the motion to compel came after the close of
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discovery.”).
But the fact remains that defense counsel has filed nothing in response to the motion and has
not offered any real objection to it. Thus, while the reality is that while the defendant could and
should have been diligent in protecting itself, the plaintiff’s counsel did not act responsibly and did
nothing to abide by the schedule it had selected or to give a reasoned explanation to the court why
a different schedule should replace the one on which it had earlier agreed. Thus, the motion of the
defendant will be granted – but with certain constraints. The presently scheduled deposition of the
plaintiff shall proceed on November 7, 2016 at the offices of the defendant’s counsel at 9:00 a.m.
Plaintiff is advised that failure to timely appear for her deposition as scheduled will result in
sanctions, which may include dismissal of the plaintiff’s case with prejudice and attorneys’ fees.
Further, but for this deposition, fact and expert discovery are closed.1 All dispositive motions,
if any, will be extended and they, with supporting memoranda, are to be filed by December 7, 2016.
Responses are to be filed by January 9, 2017. Replies are to be filed by January 24, 2017. The court
will rule by mail. Counsel shall provide courtesy copies of all filings and exhibits with chambers
contemporaneously with their filing.
One further point: It is a court’s obligation to take notice of subject matter jurisdiction at any
time and whether or not brought to the court’s attention by one of the parties or even contemplated
by them. Wise v. Wachovia Securities, LLC, 450 F.3d 265, 267 (7th Cir.2006); Smoot v. Mazda
Motors of America, Inc., 469 F.3d 675, 678 (7th Cir. 2006); Orum v. C.I.R., 412 F.3d 819, 821 (7th
Cir. 2005); Perrywatson v. United Airlines, Inc., 762 F.Supp.2d 1107 (N.D.Ill. 2011), aff’d, 527

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The motion does not seek an extension of time for expert discovery which closed on October 20,

2016.

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Fed.Appx. 559 (7th Cir. 2013). In that regard, there may be an issue as to whether the jurisdictional
amount can be met in this case, even though the parties have apparently agreed that the amount in
controversy exceeds $75,000 inclusive of interest and costs. See Dkt. #1 at 3, ¶¶12, 13. Thus, the
court called counsels’ attention to McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839
(7th Cir. 2009). That, and other cases dealing with whether a party can meet the threshold
jurisdictional amount for federal jurisdiction ought to be reviewed by the parties. What their reaction
will be remains to be seen.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 11/3/16

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