Cavelle v. Chicago Transit Authority et al

Filing 105

REPORT AND RECOMMENDATION Objections to R&R due by 7/24/2019. Signed by the Honorable Mary M. Rowland on 7/10/2019. Mailed notice. (dm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE CAVELLE,
Plaintiff,

Case No. 17-CV-5409
Magistrate Judge Mary M. Rowland

v.
CHICAGO TRANSIT AUTHORITY
and DORVAL CARTER,
Defendants.

REPORT AND RECOMMENDATION
Defendants seek sanctions against Plaintiff and his attorneys for pursuing a
false claim of witness tampering against Defendants. For the reasons discussed
below, this Court recommends that Defendants’ Motion for Sanctions [77] be
GRANTED IN PART.
A. BACKGROUND
Plaintiff George Cavelle (“Cavelle” or “Plaintiff”), a former Chicago Transit
Authority (“CTA”) Chief Transit Operating Officer has a five count First Amended
Complaint pending against the CTA and its President Dorval Carter
(“Defendants”). Cavelle alleges that after he was forced to resign from the CTA,
Defendants defamed him and interfered with his new job opportunity in Seattle.
Cavelle claims tortious interference with business expectancy/prospective economic

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advantage, tortious interference with contract, defamation per se, defamation per
quod, and false light against both named Defendants. 1
The present motion for sanctions has its origins in a February 6, 2019 email
when plaintiff’s counsel wrote the following to defense counsel:
It has come to our attention that CTA has threated potential witnesses
in this case with loss of pay and potentially more serious repercussions
if they do not testify “on CTA’s side”. This constitutes blatant witness
tampering, and it is unethical, sanctionable and actionable. We intend
to issue discovery on these issues. We certainly would not accuse you
or your firm of such egregious and unprofessional conduct without
solid proof. Rather, we assume this was done by CTA agents without
your knowledge, and thus wanted to advise you of what we believe is
taking place within CTA.
(Dkt. 77-1, Ex. A). On February 19, 2019, the District Judge referred this case to
the undersigned for discovery and settlement. (Dkt. 48). On March 7, 2019, this
Court held a hearing on various discovery issues, including Defendants’ motion
(Dkt. 56) seeking information about Plaintiff’s accusation of witness tampering
against CTA. At the hearing, this Court stressed the seriousness of witness
tampering but also the seriousness of making an unfounded witness tampering
allegation. The Court conducted an evidentiary hearing on March 21, 2019. (Dkt.
65). Two witnesses testified, Cavelle and Mr. George Mendenhall (“Mendenhall”),
the alleged victim of tampering. A third witness, the alleged tamperer (“Individual
A”), was available but not called by either side to testify. (Dkt. 68).
Defendants argue that the evidentiary hearing showed there was no witness
tampering and Cavelle and his attorneys should be sanctioned for pursuing and
On July 2, 2019, the District Judge permitted Plaintiff to file his amended complaint.
(Dkts. 73, 101). Plaintiff filed his First Amended Complaint on July 9, 2019. (Dkt. 102).

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perpetuating a false claim of witness tampering. They ask the Court to dismiss the
entire case with prejudice and for an award of fees and costs. In the alternative,
Defendants request that the Court exclude the “Lookout Bulletin” 2 from evidence
and dismiss defendant CTA with prejudice from the case. Plaintiff argues
Defendants failed to meet their burden and their motion should be denied.
B. LEGAL STANDARD
In their motion, Defendants invoke both 28 U.S.C § 1927 and the Court’s
inherent power. “[Section 1927] allows a court to penalize a lawyer who ‘multiplies
the proceedings in any case unreasonably and vexatiously’…liability under §1927 is
personal to the lawyer.” Cooke v. Jackson Nat'l Life Ins. Co., 919 F.3d 1024, 1029
(7th Cir. 2019). The purpose of Section 1927 “is to deter frivolous litigation and
abusive practices by attorneys…and to ensure that those who create unnecessary
costs also bear them.” Kapco v. C & O Enters., 886 F.2d 1485, 1491 (7th Cir. 1989)
(internal citations and quotations omitted).
In addition, “[i]t has long been understood that federal judges have a commonlaw power (sometimes called an inherent power) to impose sanctions on parties that
needlessly run up the costs of litigation.” Cooke, 919 F.3d at 1027 (citing Chambers
v. NASCO, Inc., 501 U.S. 32 (1991)). This authority applies also to sanctions against
attorneys. Fred A. Smith Lumber Co. v. Edidin, 845 F.2d 750, 752 (7th Cir. 1988).
The inherent authority to sanction allows courts “to manage their own affairs so as
to achieve the orderly and expeditious disposition of cases.” Chambers, 501 U.S. at
The “Lookout Bulletin” is referred to as the “Wanted Poster” in Plaintiff’s amended
complaint and attached thereto as Exhibit A. (Dkt. 102, Ex. A).
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43 (citation and quotation omitted). A court can “fashion an appropriate sanction for
conduct which abuses the judicial process…dismissal of a lawsuit…is a particularly
severe sanction...” Id. at 44–45. Before imposing sanctions a court must find that
“the culpable party willfully abused the judicial process or otherwise conducted the
litigation in bad faith.” Ramirez v. T&H Lemont, Inc., 845 F.3d 772, 776 (7th Cir.
2016). “Although part of a court’s consideration should be on the impact or effect
that the conduct had on the course of the litigation, there is no requirement that the
district court find prejudice.” Fuery v. City of Chi., 900 F.3d 450, 464 (7th Cir. 2018).
Sanctions may be used both to reprimand and “deter future parties from
trampling upon the integrity of the court.” Twyman v. S&M Auto Brokers, Inc., 748
F. App'x 705, 707 (7th Cir. 2019) (internal citation and quotations omitted). See also
Ramirez, 845 F.3d at 776 (courts “may impose appropriate sanctions to penalize and
discourage misconduct.”). “‘Bad faith’ or ‘vexatious’ conduct, in both the inherent
power and § 1927 contexts, does not require subjective bad intent; certain types of
reckless conduct can suffice.” Egan v. Huntington Copper Moody & Maguire, Inc.,
2015 U.S. Dist. LEXIS 47143, at *14 (N.D. Ill. Apr. 10, 2015).
C. ANALYSIS
The Court finds that Plaintiff and his attorneys wrongfully pursued an
unsubstantiated claim of witness tampering. Their conduct cost this Court and
Defendants time and resources. It slowed resolution of the case. Their conduct also
infringed Defendants’ ability to investigate a serious accusation against them and
infringed defense counsels’ ability to defend their clients on the merits. Plaintiff and

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his counsel’s conduct, however, does not warrant the harsh penalty of dismissal of
the entire case with prejudice or dismissal of CTA from the case. This Court
recommends a sanction of (1) attorneys’ fees and costs; and (2) exclusion of the
Lookout Bulletin from evidence.
1. Evidentiary Hearing Findings
The evidentiary hearing revealed no evidence that Defendants or any CTA
employee attempted to or succeeded in “keep[ing] witnesses from testifying.” United
States v. Rand, 482 F.3d 943, 950 (7th Cir. 2007). To the contrary, the evidence
showed that no witness tampering occurred. The evidence consisted of the
testimonies of Cavelle and Mendenhall, and Defendants’ sixteen exhibits.
Mendenhall is a CTA union rail mechanic and long-time friend of Cavelle. Plaintiff
disclosed Mendenhall as a witness in this case because of his knowledge of the
Lookout Bulletin.
The Court found Mendenhall to be a very credible witness. He was consistent
and forthright, and the exhibits admitted by Defendants were consistent with his
testimony. He was understandably anxious because he did not know the reason he
was being called to testify until the hearing began, and he had been spending
significant amounts of time at the hospital with his newborn baby who had been in
intensive care for a month. By contrast, the Court did not find Cavelle to be
credible. His testimony was at times inconsistent and exaggerated, unsupported by
any documentary evidence, and contradicted by Mendenhall.

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Both Cavelle and Mendenhall testified that they had a phone conversation in
early February 2019 about this case, but they differed about what was said. Cavelle
testified that Mendenhall “sounded stressed” and said that “[CTA’s] lawyers are
going to call” him and he had to report to CTA and “may be quarantined down there
for a couple of days and I don’t know how I’m going to get paid for this.” (Mar. 21 Tr.
at 25). Cavelle then said to Mendenhall, “what are you talking about; you’ll get paid
for this.” (Id. at 26). According to Cavelle, Mendenhall responded “that’s not what
they’re telling me. They’re telling me if it’s for CTA, the lawyers will handle it; but if
it’s not, I may have to make up the time.” (Id.). Cavelle called his lawyer to report
what Mendenhall said, and then called Mendenhall back to ask who from the CTA
called him. According to Cavelle, Mendenhall said Individual A. (Id. at 26–28).
For his part, Mendenhall testified that no one from the CTA threatened him and
he never told anyone that he was threatened in this case. Mendenhall testified that
during the early February 2019 conversation, he “vented” to Cavelle about being
involved in the litigation. His wife was having a difficult pregnancy and he did not
need any added stress. Mendenhall explained that when you perform work for CTA
outside your regular duties, it can be challenging to get paid for that time spent. He
referred to it as “chasing my paycheck.” He testified that when he spoke to Cavelle
in early February 2019 he vented “we got enough going on. I don’t need to chase my
paycheck.” (Mar. 21 Tr. at 77–79). Mendenhall said that Cavelle responded, “that’s
typical CTA…chasing your money and all that.” (Id. at 84). But Mendenhall was
clear that “no one has threatened me from the CTA.” (Id. at 88, 92). He said that

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Individual A had been “nothing but respectful and professional to me”, never
threatened him, and Mendenhall never told anyone, including Cavelle, that he was
threatened about his testimony in this case. (Id. at 88–90).
Also, while Cavelle testified that Mendenhall said that CTA counsel told him
they would need his financial records and his wife’s financial records (id. at 31),
Mendenhall specifically said that did not happen. (Id. at 100). Cavelle’s testimony
on cross examination contradicted his earlier testimony: he was asked, “so Mr.
Mendenhall never mentioned in that phone call that anyone at the CTA told him he
would not be paid [for time testifying]?” Cavelle answered “No.” (Id. at 41).
Defendants’ exhibits, admitted into evidence without objection (Mar. 21 Tr. at
114–15), showed no evidence of witness tampering. The exhibits contain mundane
emails about scheduling of Mendenhall’s interview with CTA outside counsel, show
Mendenhall took steps to ensure he would be paid for his time, and also contain
paystubs showing that CTA paid him for the two times he was interviewed by CTA
outside counsel. They corroborate Mendenhall’s testimony.
Cavelle, on the other hand, did not offer any documentary evidence to
corroborate his testimony or claim of witness tampering. In fact, when asked at the
hearing whether he had any text messages or emails with Mendenhall related to
the issues Cavelle testified about, he answered, “I deleted them all.” (Mar. 21 Tr. at
53). This answer seriously damaged Cavelle’s credibility as a witness. 3
If there were such emails or texts and Cavelle in fact deleted them, knowing as he did that
this matter had been raised with the Court, such conduct could constitute spoliation of
evidence. As the Court finds this answer lacking in credibility, the notion that any such
texts or emails ever in fact existed is doubtful.

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In his response brief, Plaintiff concedes that “the evidence…does not rise to the
level of a provable case of witness tampering.” (Dkt. 93 at 21). At the same time, he
argues that the “circumstantial evidence” “suggests that something untoward may
have happened,” which “mitigates toward tampering not sanctions against Plaintiff
or Plaintiff’s counsel.” (Id. at 18). It is unpersuasive, to say the least, for Plaintiff to
concede on one hand that he could not prove witness tampering and request, on the
other, that the Court read into the “circumstantial evidence” to find it “mitigates
toward tampering”. 4
This Court found no evidence, direct or circumstantial, of witness tampering.
Plaintiff argues that CTA’s General Counsel’s statements about the payment
reimbursement process conflicted with Mendenhall’s, and therefore she might have
made a “false statement” to the Court. (Dkt. 93 at 18–19). Plaintiff also argues that
the emails in Defendants’ exhibits “suggest that Individual A said something to Mr.
Mendenhall regarding compensation.” (Id. at 19–21). There is no evidence for either
of these assertions. As Defendants point out, Plaintiff’s counsel had the opportunity
to question Individual A under oath at the hearing but did not. (Dkt. 94 at 6). These
arguments serve instead as further examples of Plaintiff making unsupported
claims against Defendants. It is why sanctions are proper in this case.

In his response brief, Plaintiff focuses on Mendenhall’s stated fear of “retaliation.” (Tr. at
87). When read in context and as the Court heard them live at the hearing, Mendenhall’s
statements showed anxiety about being involved as a witness in this case generally and
fears about the impact on his job security in light of the very stressful situation involving
the health of his wife and baby. When asked if these concerns came from anything anyone
at CTA did or said, Mendenhall was clear that they did not.

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2. Sanctionable Conduct
Witness tampering is serious. See Emerson v. Dart, 900 F.3d 469, 473 (7th Cir.
2018) (“we have long held that witness tampering is among the most grave abuses
of the judicial process.”) (internal citation and quotations omitted); Ramirez, 845
F.3d 772 (affirming sanction of dismissal of case with prejudice for witness
tampering). Accusing a party of witness tampering is also serious. The
circumstances of this case justify sanctions, but not the severe sanctions Defendants
request. Both Cavelle and his counsel should face sanctions for exaggerating the
alleged witness tampering, refusing to provide Defendants with any information
despite CTA’s repeated requests, needlessly perpetuating the accusation by not
assisting the CTA to properly investigate it, failing to withdraw the allegation
despite multiple opportunities to do so, and persisting with baseless allegations
after the hearing.
Plaintiff’s counsel accused CTA of witness tampering on February 6. Defense
counsel promptly on two separate occasions requested more information. (Mot., Exs.
B and C). Having received no response, Defendants served a formal document
request on February 8. (Id., Ex. D). On February 18, during a meet and confer,
Plaintiff’s counsel reported that he had evidence of witness tampering but still
declined to disclose it. (Dkt. 56 at 3).
On February 19, the parties appeared before the District Judge where defense
counsel informed the District Judge of the witness tampering allegation. In a
February 22 email, Plaintiff’s counsel wrote the following to defense counsel:

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[W]ith respect to us putting you on notice that CTA employees may be
conditioning adverse employment action on the testimony of witnesses
in this case I am confident you have looked at the standard necessary
in order for us to seek sanctions against CTA for such behavior…[W]e
have not brought a motion for such relief…Our goal was to put CTA on
notice of the behavior and prevail upon you to advise your client to
insure that actions that could even be interpreted as manipulative do
not occur. 5 As of now, we do not intend to proceed further with the
matter unless we hear further reports of untoward conduct…
(Dkt. 56-1 at 42–43). While Plaintiff decided not to file a motion, Defendants
filed a motion for protective order. (Dkt. 56). That motion was set for hearing before
this Court on March 7. Although it had been a month since Plaintiff first accused
CTA of witness tampering, Plaintiff still did not provide any information until
ordered by the Court at the March 7th hearing. Plaintiff then identified the alleged
victim of tampering and alleged tamperer.
Thus before the evidentiary hearing began on March 21st, Plaintiff had
numerous opportunities to provide information to CTA so it could conduct an
investigation. On March 14 when Plaintiff received a copy of Defendant’s
evidentiary hearing exhibits, containing mundane scheduling emails and
confirmation that CTA properly paid Mendenhall for his time on this case, Plaintiff
could have moved to cancel or hold in abeyance the evidentiary hearing. And finally,
at the end of the evidentiary hearing, having heard Mendenhall testify
unequivocally that: (1) “no one has threatened me from the CTA;” (2) Individual A
had been “nothing but respectful and professional to me;” and (3) he, Mendenhall,
The Court is at a loss as to how defense counsel was to address this serious allegation
without some further information, particularly with the number of witnesses identified in
the Rule 26(a) disclosures in this case. At the March 7th hearing, Plaintiff’s stated that the
parties had identified “close to 50 [26(a)] witnesses.” (Mar. 7 Tr. at 39).

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never told anyone, including Cavelle, that he was threatened about his testimony in
this case, Plaintiff could have withdrawn his witness tampering claim.
3. Dismissal of Entire Case Not Warranted
The Court first addresses Defendants’ request to dismiss the entire case with
prejudice. That “particularly severe” sanction is not proportional here. Chambers,
501 U.S. at 45. See Montano v. City of Chi., 535 F.3d 558, 566 n.3 (7th Cir. 2008)
(“the punishment must fit the crime”). Dismissal with prejudice “must be
infrequently resorted to…[It] is a harsh sanction which should usually be employed
only in extreme situations, when there is a clear record of delay or contumacious
conduct, or when other less drastic sanctions have proven unavailing…Absent those
circumstances, the careful exercise of judicial discretion requires that a district
court consider less severe sanctions.” Barnhill v. United States, 11 F.3d 1360, 1367
(7th Cir. 1993) (internal citations and quotations omitted) (reversing sanction of
dismissal).
This is not an extreme case. While a finding of witness tampering can lead to
dismissal (Ramirez, 845 F.3d 772), Defendants have not cited any case law where
outright dismissal resulted from a finding that witness tampering did not occur and
a party wrongfully pursued the claim. A review of cases affirming dismissal
establishes that this case does not rise to that level. See e.g. Dotson v. Bravo, 321
F.3d 663, 668 (7th Cir. 2003) (describing long history of egregious litigation conduct
including filing a civil rights claim under a false name); Secrease v. W. & S. Life Ins.

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Co., 800 F.3d 397 (7th Cir. 2015) (plaintiff tried to defraud the court by asking for
relief based on falsified evidence). 6
Here Defendants contend that Cavelle fabricated the witness tampering claim,
but do not go so far as to accuse Cavelle or his attorneys of perjury. “In the federal
criminal context, perjury is defined as ‘false testimony concerning a material matter
with the willful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.’” Montano, 535 F.3d at 564. Defendants rely
on Montano, but there the Seventh Circuit reversed a sanction of dismissal with
prejudice, stating that the district court misinterpreted inconsistencies in testimony
as conspiracy among the plaintiffs to fabricate testimony. The inconsistencies
“provide fertile ground for vigorous impeachment,” and “certainly bear on Ruiz’s
credibility…but in the absence of other evidence of a deliberate falsehood do not
permit the inference that Ruiz committed perjury.” Id. at 564–65. Similar to
Montano, there is no evidence in this case of perjury.
Further, there is no direct evidence to support Defendants’ suggestions about
Plaintiff’s motives for the conduct, “to nullify Mr. Mendenhall’s testimony.” (Dkt. 77
at 22). The Court has found no evidence of bad intent. See Egan, 2015 U.S. Dist.
LEXIS 47143, at *14 (subjective bad intent not required for sanctions).

In Secrease, 800 F.3d 397, following an evidentiary hearing, the district court found that
plaintiff deliberately submitted a falsified contract with the intention to mislead the court.
This Court, while certainly finding Plaintiff’s and his counsel’s conduct sanctionable, cannot
find that they deliberately falsified evidence with the intent to defraud the Court.

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4. Sanctions Warranted
Although dismissal is not appropriate, sanctions are warranted to penalize
Cavelle and his counsel, to deter similar conduct in the future, and compensate
Defendants for unnecessary costs. This Court believes the inherent sanction
authority is the appropriate vehicle because this case warrants both evidentiary
and monetary sanctions, and the latter should be apportioned equally between
Plaintiff and his counsel. See Cooke, 919 F.3d at 1029 (Section 1927 fees and costs
cannot be assessed against the client); Chambers, 501 U.S. at 46 (“whereas
[statutory and rule-based] mechanisms reach[] only certain individuals or conduct,
the inherent power extends to a full range of litigation abuses.”).
The conduct in this case goes beyond ordinary negligence. It was objectively
unreasonable and reckless, fitting the definition of bad faith for purposes of a
sanction under the court’s inherent power. “Bad faith” has similar meanings in the
context of Section 1927 and the inherent sanction power. “Courts have used phrases
such as harassment, unnecessary delay, needless increase in the cost of litigation,
willful disobedience, and recklessly making a frivolous claim…when analyzing the
meaning of ‘unreasonably and vexatiously’ in the similar context of 28 U.S.C. §
1927, that the term ‘bad faith’ has both a subjective and objective meaning, and we
often treat reckless and intentional conduct equally.” Mach v. Will County Sheriff,
580 F.3d 495, 501 (7th Cir. 2009). “Bad faith can be ‘recklessly making a frivolous
claim.’” Egan v. Pineda, 808 F.3d 1180, 1180 (7th Cir. 2015) (quoting Mach, 580
F.3d at 501). The bad faith standard “has an objective component, and extremely

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negligent conduct, like reckless and indifferent conduct, satisfies this standard.”
Kotsilieris v. Chalmers, 966 F.2d 1181, 1184–85 (7th Cir. 1992).
Plaintiff’s counsel reacted to his client’s report of his conversation with
Mendenhall by notifying defense counsel of CTA’s “blatant witness tampering.”
Plaintiff’s counsel argues that he could not investigate the allegation because he
could not speak to CTA employee Mendenhall. However this does not explain or
excuse Plaintiff’s counsel’s haste in sending such a serious accusation based on a
second-hand report of what Mendenhall allegedly said. It does not explain why
Plaintiff’s counsel accused CTA of tampering with multiple individuals. 7 It does not
explain Plaintiff’s refusal to provide Defendants with any information for more than
a month until ordered to do so or Plaintiff’s refusal to work with Defendants to try
to resolve the issue without Court intervention. A probing conversation between
Plaintiff’s counsel and his client early on may have avoided this unfortunate event.
Plaintiff argues that there was no bad faith because he did not ask for the
evidentiary hearing and he was “willing to move past it.” (Dkt 93 at 1). It is true
that Plaintiff did not request the evidentiary hearing. But Plaintiff also did not
withdraw the witness tampering allegation. Given the seriousness of the allegation,
which Plaintiff’s counsel himself stressed in his February 6 email and which both
defense counsel and this Court reiterated, and Plaintiff’s failure to withdraw the
allegation, an evidentiary hearing was unavoidable. And as discussed, Plaintiff’s

Compare Plaintiff’s counsel’s email, “…CTA has threated potential witnesses…” (Dkt. 771, Ex. A) to Cavelle’s testimony that he was not aware of any witnesses other than
Mendenhall who were allegedly tampered with in this case. (Mar. 21 Tr. at 44).

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response brief to the motion provides more reason to impose sanctions. See Barnhill,
11 F.3d at 1368 (courts “consider the egregiousness of the conduct in question in
relation to all aspects of the judicial process.”).
The Court believes responsibility should fall to both Plaintiff and his counsel.
Based on the record and the testimony at the hearing, this Court concludes that
Cavelle, in reporting his conversation with Mendenhall to his attorney,
misrepresented the conversation. Based only on these brief phone conversations,
Cavelle’s counsel accused CTA of “blatant witness tampering.” Plaintiff’s counsel
argues that he had a “good faith” basis for making the witness tampering
accusation based on his conversation with Cavelle. But whether an attorney acted
in good faith “is not material if his conduct was objectively unreasonable.” Kapco,
886 F.2d at 1494. It was objectively unreasonable for Plaintiff’s counsel to make
such a serious allegation with so little information and to continue with the
allegation for months, well aware of the time and resources being spent and
potential consequences. 8
Accordingly, under the Court’s inherent authority, the Court recommends an
award of reasonable attorneys’ fees and costs to compensate Defendants for the
March 21st evidentiary hearing and the briefing on Defendants’ motion for
sanctions. Because Plaintiff did not specifically request the evidentiary hearing, but
should still bear responsibility for the reasons stated above, the Court recommends

See Fuery, 900 F.3d at 467 (“The clients are principals, the attorney is an agent, and
under the law of agency the principal is bound by his chosen agent’s deeds.”) (citations and
quotations omitted).
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that Plaintiff and his counsel be required to pay the fees and costs for the
evidentiary hearing and briefing on the motion for sanctions. The Court does not
recommend including any other fees or costs such as those associated with the
Defendants’ motion for protective order. See Montano, 535 F.3d at 563 (a sanction
should be “proportionate to the gravity of the offense.”); Mach, 580 F.3d at 496, 501
(affirming order requiring plaintiff to pay eighty-three percent of opposing party’s
fees because plaintiff litigated part but not entire case in bad faith).
In addition, the Court recommends excluding the Lookout Bulletin from
evidence as a sanction against Plaintiff. This is a serious sanction and will impact
certain counts in Plaintiff’s amended complaint, but the sanctionable conduct here
was serious. The Court believes this is an appropriate sanction since Mendenhall’s
testimony is tied to the Lookout Bulletin. Defendants argue that based on Plaintiff’s
April 2019 discovery responses (Mot. Ex. U), exclusion of the Lookout Bulletin
should result in dismissal with prejudice of CTA. The Court does not agree. 9 The
parties have not briefed the question of all the evidence of defamation Plaintiff may
have against CTA. This is a matter that should be raised with the district court
judge pre-trial or at the close of Plaintiff’s case. 10

The Court also does not recommend dismissing CTA from the case entirely because it
believes the present sanction is sufficient, the tortious interference claims against CTA do
not depend on the Lookout Bulletin, and it is not clear at this stage that the defamation and
false light claims against CTA are entirely dependent on the Lookout Bulletin.

9

See Northern District of Illinois General Order 18-0015, dated 6/27/2018, regarding
referrals to Magistrate Judges.

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D. CONCLUSION
For the reasons discussed in this Report and Recommendation, this Court
recommends that Defendants’ Motion for Sanctions [77] be GRANTED IN PART.
The Court recommends:
•

an award of Defendants’ reasonable attorneys’ fees and costs for the
evidentiary hearing and briefing on the motion for sanctions. Plaintiff’s
counsel should be responsible for 50% of this amount and Plaintiff
responsible for the other 50%.

•

the Lookout Bulletin should be excluded from evidence in this case.

Specific written objections to this Report and Recommendation may be served
and filed within 14 days from the date that this Order is served. See Fed. R. Civ. P.
72. Failure to file objections within the specified time will result in a waiver of the
right to appeal all findings, factual and legal, made by this Court in the Report and
Recommendation. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.
1995). A status hearing is set for August 6, 2019 at 9:30am.

E N T E R:
Dated: July 10, 2019
MARY M. ROWLAND
United States Magistrate Judge

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