Sandle v. Wal-Mart Stores

Filing 73

MEMORANDUM Opinion and Order: Plaintiff's Motion for Voluntary Dismissal without Prejudice Pursuant to Rule 41(a)(2) [dkt 71] is denied. On its own motion, pursuant to Federal Rule of Civil Procedure 41(b), the Court dismisses this matter for want of prosecution, with prejudice. - Signed by the Honorable Susan E. Cox on 3/2/2018. [For further details see order] Mailed notice (np, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GAIL SANDLE,
Plaintiff,
v.
WAL-MART STORES, INC., d/b/a SAM’S
CLUB Store Number 6349,
Defendant.

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No. 16 cv 4157
Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
On January 28, 2016, Plaintiff Gail Sandle (“Plaintiff”) initiated her cause of action for
negligence against Defendant Sam’s West, Inc. 1 (“Defendant” or “Sam’s Club”), in the Circuit Court of
Cook County, Illinois (Dkt. 1-3); Defendant removed the case to federal court based on diversity
jurisdiction. (Dkt. 1.) In short, Plaintiff alleges she slipped and fell on liquid that Defendant had allowed
to remain on the floor in the café area of Defendant’s Sam’s Club Store located in Evergreen Park,
Illinois. (Dkt. 48, p. 1.)
After discovery in this matter, Defendant filed a summary judgment motion. (Dkt. 36.) 2 As part
of the briefing on that motion, the following pertinent facts emerged: Plaintiff was shopping with her
friend, Vanessa Anderson (“Anderson”), on February 1, 2014; after checking out, Plaintiff went to the
café area, and slipped and fell on the floor while attempting to sit down on a bench in the café area.
(Dkt. 48, p. 1.) Plaintiff could not identify any liquid, food, or other substance that caused her to fall;
she did not know how long the substance she claims caused her to slip had been on the floor; she did
1 Although the caption names the Defendant as “Wal-Mart Store, Inc. d/b/a Sam’s Club Store Number 6349,”
Defendant asserts that the proper party is “Sam’s West, Inc.” (Dkt. 39.)
2 There was a near-fatal error with Plaintiff’s summary judgment briefing, as detailed in our April 17, 2017 Order:
The Court has reviewed the materials related to Defendant’s Motion for Summary Judgment, and finds that
Plaintiff has violated Local Rule 56.1(b)(3) by failing to respond to Defendant’s statement of material facts.
Although the Court would be within its rights under Local Rule 56.1(b)(3)(C) to deem each of Defendant’s
facts admitted, the Court has decided, pursuant to FRCP 56(e)(1), to give Plaintiff an opportunity to respond
to Defendant’s statement of material facts….
(Dkt. 43.) Defendant also failed to file any material facts of her own until prompted by the Court in Docket 43.

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not know if anyone of Defendant’s employees knew that the area where she fell was slippery; and she
did not know if any of Defendant’s employees had caused the relevant area to be slippery. (Id. at 1-2.)
Anderson testified in her deposition that she saw Plaintiff’s fall, and noticed after the fall that
the floor was wet. (Id. at 2.) She described the wet area as a puddle about one foot long and several
inches wide. (Id.) After she noticed the puddle, Anderson found a store employee, who told Anderson
that the area had “just been mopped,” but Anderson was unsure how long it had been since the area
had been mopped. (Id.)
There also exists video surveillance footage of the incident provided by Defendant, which the
Court reviewed as part of the summary judgment materials. (Dkt. 38, Ex. H.)
On May 30, 2017, the Court denied Defendant’s Motion for Summary Judgment, almost wholly
based on the fact that Anderson’s testimony created a question of material fact for the jury. (Dkt. 48.)
Shortly thereafter, on June 19, 2017, the Court set the jury trial in this matter to begin on November 6,
2017.
As part of the pretrial motions in limine, Defendant raised the issue of the adequacy of Plaintiff’s
witness disclosures. (Dkt. 56, Issues #6 and #7.) The Court held its final pretrial conference on
October 17, 2017 and made the following ruling as to those disclosures:
On Issues #6 and #7, the Court finds that Plaintiff did not adequately disclose Plaintiff’s
orthopedic surgeon on issues related to causation or the permanency of Plaintiff’s injury.
However, rather than bar such testimony, the Court believes that a more fair and
prudent way to remedy any prejudice from Plaintiff’s failure to make the appropriate
disclosures is to allow Defendant to take the orthopedic surgeon’s deposition on the
aforementioned topics.
(Dkt. 57.) In rapid succession thereafter, Defendant took the deposition of Plaintiff’s orthopedic
surgeon and the Parties provided the Court with a transcript of that deposition in order to allow the
Court to rule on any objections. The Court then reviewed the transcript and noted Defendant’s
renewed objection to any opinions offered by the orthopedic surgeon as to the Plaintiff’s injuries and
future injuries because Plaintiff failed to disclose these opinions pursuant to Rule 26. (Dkt. 59.) In
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response to this failure, the Court postponed the trial to allow Defendant to call its own expert witness
on these issues to cure any prejudice caused by Plaintiff’s failure to properly disclose the expert
opinions of the orthopedic surgeon. (Dkts. 59-60.) The trial was reset for February 12, 2018 through
February 16, 2018. (Dkt. 60.)
On Monday, February 12, 2018, on what was to be the first day of a scheduled five-day jury
trial, with counsel for Plaintiff and Defendant ready to proceed with trial, as well as the Court and a
pool of potential jurors, Plaintiff herself failed to appear. 3 Plaintiff’s counsel represented on the record
that Plaintiff’s failure to appear was due to an apparent medical condition, but counsel was unable to
give any more details about what that condition might be or when it might be resolved. (Dkt. 67.)
Neither the Court nor counsel had any prior warning that Plaintiff would not appear to meet her
obligations or prosecute her case on that first day of trial. 4
Plaintiff’s counsel informed the Court that Plaintiff allegedly had a doctor’s appointment
scheduled the next day, February 13, 2018. Therefore, the Court set the matter for status on February
14, 2018 and ruled that “Plaintiff is ordered to present documentation of medical condition -- including
diagnosis and prognosis -- before the Court continues the trial.” (Dkt. 67.) The Court also advised
Plaintiff’s counsel that there are costs that are associated with calling up jury pool and that Plaintiff
should be responsible for those costs if her excuse for nonattendance was not adequate.
At the February 14, 2018 status, Plaintiff’s counsel reported that he had been unable to contact
Plaintiff’s friend and witness, Ms. Anderson, also appeared on February 12, 2018 for trial, as did Defendant’s store
manager as a corporate representative.
4 Plaintiff’s counsel represented that he had spoken to Plaintiff several times the prior week and that although Plaintiff
expressed she “was not feeling well”, she would indeed be present at trial. The first indication of anything amiss seems
to be a mere 12-hours before trial was to start, in the form of a voicemail Plaintiff left for her counsel on his office
phone on Sunday evening, February 11, 2018 near 10:00 p.m. stating that it was urgent he return her call. (Plaintiff’s
counsel did not indicate that Plaintiff relayed anything about her alleged inability to attend trial the following morning.)
Plaintiff thereafter left her counsel another office voicemail at 8:45 a.m. on the day of trial stating that she was “under
a doctor’s care” and to call her back. When Plaintiff’s counsel finally was able to reach Plaintiff near the 10:00 a.m.
scheduled start for trial, Plaintiff apparently offered her counsel a series of vague excuses for her nonappearance, such
as that she was “under a doctor’s care”; she was “under some type of medication” she was being weaned off of; she
has “some sort of emotional issues going on right now”; “she can’t walk because of her legs”; and that she was not
able to see her doctor on Friday (2/9/2018) because of a snowstorm and that’s why she “had a bad weekend” but she
was planning to see the doctor on Tuesday (2/13/2018). See February 12, 2018 transcript.
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the Plaintiff to produce the required medical documentation, despite multiple efforts. (Dkt. 68.) The
Court also advised Plaintiff that the costs to call up the jury pool in the instant matter were “well over
$1,000” and reminded him that should Plaintiff lose at trial, she would be responsible for Defendant’s
costs under Rule 54(d).
Although Plaintiff’s counsel made an oral motion to voluntarily dismiss (Defendant orally
objected and noted it was not in a position to agree to a voluntary dismissal due to the costs it had
already incurred), the Court advised Plaintiff’s counsel to file a written motion to voluntarily dismiss
without prejudice in order that Plaintiff might enunciate her reasons that the dismissal should be
without prejudice. (Dkts. 68, 70.)
Plaintiff has filed her motion to voluntarily dismiss without prejudice under Rule 41(a)(2)
(Dkt. 71) and Defendant has filed a reply (Dkt. 72), which is now at issue before the Court. In her
motion for voluntary dismissal, Plaintiff elusively states that she was unable to appear on the date of
trial due to unidentified “health complications.” (Id. at p. 3.) Plaintiff acknowledges that she was
“unable to provide a doctor’s documentation regarding her health status” as required by the Court, but
fails to state why this is so. Given the quite serious implications of the failure to provide a valid excuse
as enunciated by the Court to Plaintiff’s counsel, it is inexplicable that over a week after her trial was
scheduled to begin, Plaintiff is unable to provide a more precise recitation of the alleged “health
complications” that kept her away from court, or to now append the required doctor’s note to her
motion. 5 Plaintiff’s already somewhat dubious excuse has become even less clear than it was when she
went AWOL. Perhaps the only excuse that the Court can fathom for these continued vagueries is that
Plaintiff has still not been in contact with her counsel, although counsel may have been too polite to say
so in the motion.
A dismissal without prejudice under Rule 41(a)(2) is within the sound discretion of the district
court. Kovalic v. DEC Int’l, Inc., 855 F.2d 471, 473 (7th Cir. 1988). Some of the factors set out by the
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Or to otherwise provide it to the Court if it contained protected medical information.

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Seventh Circuit, in Pace v. S. Exp. Co., justifying denial of a motion to dismiss without prejudice are the
“defendant’s effort and expense of preparation for trial, excessive delay and lack of diligence on the
part of the plaintiff in prosecuting the action, [or] insufficient explanation for the need to take a
dismissal…” Pace v. S. Exp. Co., 409 F.2d 331, 334 (7th Cir. 1969). Here, Plaintiff has failed to meet the
standards of a motion for voluntary dismissal without prejudice.
It is not that Plaintiff’s case was on the eve of trial when Plaintiff failed to show up to prosecute
her case, but the case was actually at the hour of trial when Plaintiff’s counsel reluctantly informed the
Court that he had just moments before gotten ahold of Plaintiff who reported that she would not be
showing up to trial that day. This case has been pending for over two years (much like the Seventh
Circuit Pace case), and discovery was complete, including last-minute expert discovery necessitated by
Plaintiff’s failure to disclose certain expert opinions. 6 Literally everything was in place for trial to begin
except the Plaintiff. It is understandable that Defendant went through significant effort and expense in
preparation for trial; this fact is understood even without Defendant’s counsel specifying so as he did in
objection to Plaintiff’s counsel’s oral motion to dismiss on February 14, 2018 and in Defendant’s
Response to Plaintiff’s Motion for Voluntary Dismissal (Dkt. 72). In addition to the legal effort and
time defense counsel put forth to prepare for both scheduled trials in this matter, as to the February
2018 trial, “Defendant retained and paid an expert to be ready to testify on day one of trial [and] hired
technical support to assist with operating equipment needed for the first day of trial.” (Id. at p. 3.)
In addition to this factor cutting against dismissal without prejudice, there has indeed been
excessive delay and a lack of diligence on the part of Plaintiff in prosecuting this action. In her motion
Plaintiff alleges she “was ready to proceed to trial back in November 2017” but for the continuance to
February 2018. [Dkt. 71, p. 3.] This is simply false. The November 2017 trial was continued as a direct
result of Plaintiff’s failure to disclose Plaintiff’s treating physician as expert with opinions about

Discovery has been closed for over a year (2/27/2017; Dkt. 33), save for Plaintiff’s expert discovery snafu. See fn. 7,
infra.

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causation or permanency. See October 17, 2017 final pretrial conference transcript and dkts. 59-60. 7 In
addition, the summary judgment briefing schedule in this case was extended by several weeks due to
Plaintiff’s failures to properly follow the Federal Rules of Civil Procedure and the Local Rules of this
Court as they relate to motions for summary judgment. See fn. 2, supra. Finally, the capstone in this
record of delay is Plaintiff’s failure to appear on February 12, 2018 at her own trial without satisfactory
explanation.
As to the last factor enunciated in Pace, while Plaintiff’s counsel has detailed Plaintiff’s desire to
take a voluntary dismissal in this matter, the vague explanation for Plaintiff’s failure to appear such that
this dismissal is necessitated is insufficient. No such satisfactory explanation has been forthcoming
from the Plaintiff in the two-plus-weeks since her trial was scheduled to begin. Thus, the Court is
doubtful of the veracity of Plaintiff’s claims that her “health complications” were such that she was
medically prevented from prosecuting this matter on her behalf on February 12, 2018.
The Pace factors enumerated above “act as a guide for the court in exercising its discretion, and
all factors need not be present” for the court to deny a motion for voluntary dismissal. Shrader v. Palos
Anesthesia Assocs., S.C., 2003 WL 22225616, at *1 (N.D. Ill. Sept. 24, 2003). Here, the Court fairly
believes all three of these factors have been met. Therefore, Plaintiff’s Motion for Voluntary Dismissal
without Prejudice Pursuant to Rule 41(a)(2) (Dkt. 71) is denied.
However, on its own motion, pursuant to Federal Rule of Civil Procedure 41(b), the Court
dismisses this matter for want of prosecution, with prejudice. “Although dismissal is a harsh sanction
that should be imposed infrequently,” the Seventh Circuit has “recognize[d] that the power to sanction
through dismissal is essential to the district courts’ ability to manage efficiently their heavy caseloads
7 In allowing Plaintiff’s treating physician to be deposed and allowing Plaintiff to explore the ideas of causation and
permanency at that deposition, the Court noted that it took pity on Plaintiff and her counsel so that Plaintiff’s case
would not be decided on a technicality (i.e., Plaintiff would be unable to prove her damages without these previously
undisclosed opinions). The Court notes here that while he was frustrated with potentially being unable to find on
short notice an expert of his own to counter Plaintiff’s doctor’s expert opinions, Defense counsel, Mr. James Balog,
was more than courteous in volunteering that Plaintiff’s expert disclosure failure was inherited by Plaintiff’s trial
counsel, Mr. Daniel Yukich, from an associate at Mr. Yukich’s firm who had been responsible for Plaintiff’s case
before trial.

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and thus protect the interests of all litigants.” Salata v. Weyerhaeuser Co., 757 F.3d 695, 699 (7th Cir. 2014)
(internal citation omitted). The reasons supporting this dismissal are detailed below.
The case of Kasalo v. Harris & Harris, 656 F.3d 557 (7th Cir. 2011) most succinctly lays out the
factors a court should consider in dismissing for want of prosecution. They are as follows: (1) the
frequency of the plaintiff’s failure to comply with deadlines; (2) whether the responsibility for mistakes
is attributable to the plaintiff herself or to the plaintiff’s lawyer; (3) the effect of the mistakes on the
judge’s calendar; (4) the prejudice that the delay caused to the defendant; (5) the merit of the suit; and
(6) the consequences of dismissal for the social objectives that the litigation represents. Kasalo, 656 F.3d
at 561 (citations omitted).
It may initially seem like Plaintiff missed a single, massive deadline in this case when she failed
to appear for trial. Arguably, this is the most egregious of Plaintiff’s failures, but it is not the only
deadline that was missed/extended due to Plaintiff. At the February 12, 2018 hearing, Plaintiff was
warned, though her counsel, about the consequences, including dismissal, if she failed to provide an
adequate medical excuse for her failure to appear when the court reconvened two days later for a status
on Plaintiff’s nonappearance. Then, Plaintiff missed a second deadline: not only did Plaintiff fail to
provide the Court with any excuse at all on February 14, 2018, but she failed to respond to her own
counsel in any manner when she was well aware of the consequences at stake by her continued failure
to appear/provide a doctor’s note. On February 14, 2018, the Court again warned Plaintiff’s counsel
about the possibility of a dismissal for want of prosecution, and gave Plaintiff an opportunity to
provide a written motion for voluntary dismissal, wherein Plaintiff could have detailed the sufficiency
of her medical excuse. While this motion was indeed filed by Plaintiff’s counsel, it is a (third) failure in
the sense that it offers nothing in the way of clarification into why Plaintiff failed to present herself for
trial on February 12, 2018. It seems this is through no fault of counsel, but rather, it appears to the
Court that counsel was doing his best to advocate for a client who was likely still making herself
unavailable to prosecute her case. These three massive failures, in combination with Plaintiff’s expert
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disclosure failure which caused the November 2017 trial date to be moved three days before it began
and with Plaintiff’s failure to properly respond to Defendant’s summary judgment motion which caused
the summary judgment briefing schedule to be extended, create enough of a pattern of a failure to
comply with the rules, procedures, and deadlines of this Court such that this first Kasalo factor has been
met. 8
As to the second factor, whether the responsibility for mistakes is attributable to the Plaintiff or
her counsel, here Plaintiff herself is responsible and bears the risk of dismissal. While the two
procedural failures above are attributable to Plaintiff’s counsel and have been mitigated by the Court so
that Plaintiff herself was not prejudiced by any technical/procedural deficiencies attributable to her
counsel, the three major failures to prosecute her case are solely attributable to Plaintiff. Plaintiff’s
counsel was present and ready for trial on February 12, 2018; Plaintiff was not, and offered, through
her counsel, vague, unspecified health-related reasons for her failure to appear. Plaintiff failed to clarify
her insufficient reasons for failing to appear on two separate occasions since that date. Since the date
her counsel filed her motion for voluntary dismissal (February 20, 2018), Plaintiff has not supplemented
her motion or otherwise notified the Court of a legitimate, documented medical reason for her failure
to prosecute her case.
The third Kasalo factor is the effect on the judge’s calendar. Not only has the Court had to move
Plaintiff’s trial once already because of the Plaintiff’s failure to disclose expert witness opinions, but
now Plaintiff has compromised another week of the Court’s time. While the Court can (and did)
complete other written work in this time, the Court also mediates settlement conferences for district
court judges. The Court typically schedules these conferences 90 days out because of the high demand
on the judge’s schedule for these conferences, and the Court typically schedules 3-4 settlement
conferences a week. These conferences cannot be scheduled at the last minute because each party is
given the opportunity to provide pre-settlement conference letters to the Court and the due dates for
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Even if this factor were to be weighed in favor of the Plaintiff, the other factors clearly weigh against her.

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these letters are tied to the settlement conference date to allow each party, and the Court, sufficient
time to prepare and respond to the settlement positions of the other side. This means that because of
these two weeks of delay, there are, conservatively, seven additional cases on the federal court docket
that could have otherwise been settled. Not only have these delays personally had an effect on Judge
Cox’s calendar, but also on the federal docket as a whole. 9
As Kasalo specifically suggests that the Court consider “the effect of the mistakes on the judge’s
calendar” (i.e., all mistakes, not just those mistakes attributable to Plaintiff herself), we also note that the
insufficiency problems with Plaintiff’s summary judgment briefing (which the Court managed to keep
on a tight timeline) also had a small effect on the Court’s calendar and created additional work for the
Court and its clerks. While it is extraordinarily difficult to follow a poorly-supported, slapdash
document that fails to adhere to the Federal Rules of Civil Procedure and this Court’s Local Rules, the
Court is not required “to fish a gold coin from a bucket of mud” for a plaintiff so that her case is not
dismissed on a technicality on summary judgment. U.S. ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d
374, 378 (7th Cir. 2003). Yet here we are. Plaintiff had every benefit of the doubt and procedural
technicality resolved in her favor in this case so that she might have her day in court for a jury to rule
on the questions of material fact in her case. That day in court began February 12, 2018. The Court
cleared an entire week of her calendar for this trial. Plaintiff failed to show up.
As to the next factor, the prejudice that the delay caused the defendant, this factor does not
heavily weigh against Plaintiff. While there is indeed delay that has been suffered by all involved, and
that trial preparation time is unrecoverable, there is only negligible prejudice to a defendant where the
ultimate resolution is a dismissal of plaintiff’s claims, with prejudice, as the factors here ultimately add
up to.

9 Additionally, as we advised Plaintiff (through her counsel) twice in open court in February of 2018, there are
significant costs to taxpayers as well, in the form of juror appearance fees. Per the jury department of the U.S. District
Court for the Northern District of Illinois, the actual costs to call up the 16-person jury pool in the instant matter
amount to $1,185, which includes a $40 attendance fee per juror plus their actual mileage traveled.

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As to the fifth Kasalo factor, the merits of the suit, while the Court is not the factfinder in this
matter, “it is entirely proper for the judge to consider the likely merits of the suit in deciding whether to
dismiss it for failure to prosecute.” Ball v. City of Chicago, 2 F.3d 752, 759 (7th Cir. 1993) (collecting
cases). Moreover, “the less meritorious the suit, the less likely is it that dismissing it will impair the
deterrent and compensatory objectives of the law under which the plaintiff was proceeding, by letting a
wrongdoer get off scot-free.” Ball, 2 F.3d at 759. Per our summary judgment ruling, a review of
Anderson’s testimony in conjunction with the surveillance video in the instant matter makes it clear that
this case made it through summary judgment by the skin of its teeth. In fact, when the Court urged the
Parties to settle in this matter, the Court noted that Plaintiff’s case had survived summary judgment by
the barest of margins. The Court is not convinced that by involuntarily dismissing the instant matter, an
alleged wrongdoer would get off scot-free, or that the deterrent and compensatory objectives of the law
would be impaired. Regardless, the Court cannot allow Plaintiff to unreasonably and deliberately hinder
the progress and disposition of her case, whether her claims are meritorious or not. See In re Ameriquest
Mortg. Co. Mortg. Lending Practices Litig., 2015 WL 12791432, at *5 (N.D. Ill. July 27, 2015).
Lastly, the sixth factor for the Court to consider is the consequences of dismissal for the social
objectives that the litigation represents. This factor seems similar to a consideration of whether the
deterrent and compensatory objectives of the law would be impaired, which we have already addressed
above. Other cases in the Northern District have noted some additional potential aspects of this “social
objectives” factor, none of which are present here. For instance, given that there is no alleged express
or widespread policy of Sam’s Club implicated here by Plaintiff, the consequences of dismissal for the
social objectives are minimal. See Price v. City of Chicago, 2016 WL 305355, at *4 (N.D. Ill. Jan. 26, 2016).
Likewise, a dismissal of the instant matter would not obstruct the social objectives underlying Plaintiff’s
claims as those objectives have been satisfied by resolution of many similar alleged slip and fall claims
over the years. See In re Ameriquest Mortg., 2015 WL 12791432, at *5.
Thus, involuntary dismissal under Fed. R. Civ. P. 41(b) in the instant matter is warranted for the
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reasons detailed above. This case is hereby dismissed, with prejudice.

Entered: 3/2/2018
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U.S. Magistrate Judge, Susan E. Cox

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