Brooks v. SAC Wireless, LLC
Filing
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MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant's motion 35 to dismiss as a sanction for misconduct is granted. All other motions are terminated. The status hearing of 09/18/2019 is vacated. A separate AO-450 judgment shall be entered and mailed to Plaintiff. Civil case terminated. Emailed notice(slb, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RUFUS BROOKS,
Plaintiff,
v.
SAC WIRELESS, LLC
Defendant.
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No. 18 C 03472
Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Rufus Brooks has sued SAC Wireless, LLC for employment
discrimination. R. 1, Compl.1 During the course of discovery, Defendant SAC Wireless
filed a motion to dismiss as a sanction for Brooks’ alleged misconduct during
depositions. R. 35, Mot. Sanctions. After holding a live-witness hearing and on
reviewing the parties’ briefing, the Court grants SAC’s motion and dismisses the case
with prejudice.
I. Background
Brooks filed this case in May 2018, alleging that he had applied for 60 positions
at SAC and was not hired for any of them due to his race or age. See generally Compl.
Discovery began, and on February 21 and 22, 2019, Brooks was scheduled to take
depositions of three SAC employees, Jeff Hamm, Kevin Pope, and Wanda Rodriguez,
at the Chicago office of SAC’s counsel, the law firm Thompson Coburn. Mot. Sanctions
1This
Court has subject matter jurisdiction under 28 U.S.C. § 1331. Citations to the
docket are noted by “R.” followed by the docket number and, where necessary, a page or
paragraph citation.
¶¶ 1-2. In turn, SAC’s deposition of Brooks was scheduled for the afternoon of
February 22. Id. ¶ 2. Susan Lorenc, a partner at Thompson Coburn and a counsel of
record for SAC, defended the first three depositions, which were of the SAC employees
(the third took place on the morning of February 22). On the afternoon of the second
day of depositions (February 22), SAC filed a motion “to terminate litigation and for
sanctions” alleging that Brooks had behaved aggressively and threatened a witness
during the depositions. See generally Mot. Sanctions. SAC was so alarmed that the
motion also said that Brooks would not be allowed back into Thompson Coburn’s
office for his deposition that afternoon. Id. ¶ 3. After receiving the motion for
sanctions, the Court set a briefing schedule and directed SAC to supplement the
motion with affidavits and transcripts to back up its allegations. R. 37, 2/23/19
Minute Order. The Court also scheduled an evidentiary hearing for April 2, 2019 at
1:30 p.m. Id.
II. Legal Standard
District courts have inherent authority to sanction litigants for “conduct [that]
abuses the judicial process.” Chambers v. NASCO, Inc., 501 U.S. 32, 44-45 (1991).
That includes the power to dismiss a case if the misconduct is egregious enough. Id.
In order to impose sanctions, a federal court must find by a preponderance of the
evidence 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,
776-79 (7th Cir. 2016) (rejecting a clear-and-convincing evidence requirement for
sanctions imposed both under Rule 37 and under the Court’s inherent authority).
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After making that initial factual finding, a court has broad discretion to choose
a sanction. That said, Seventh Circuit decisions instruct that in choosing the
appropriate level of sanction to impose, a district court should keep an eye both to the
egregiousness of the abuse of process alleged, as well as to whether the plaintiff
should have known better. In Ladien v. Astrachan, the Seventh Circuit suggested
that it might have reversed a dismissal if “the district court had dismissed [the] case
for a single act of violative conduct.” 128 F.3d 1051, 1057 (7th Cir. 1997) (emphasis
added). But in that case, in which the plaintiff had repeatedly contacted the
represented defendants directly after the court warned him not to; failed many times
to respond timely and adequately to discovery requests; and threatened to pursue
criminal charges against the defendants if they did not settle, the Seventh Circuit
found that dismissal was not an abuse of the trial court’s discretion. Id.
An opportunity to be heard is important too. The Seventh Circuit reversed a
dismissal sanction where the plaintiff was not given a fair opportunity to respond to
the allegation against him. In Birdo v. Urbansky, the clerk’s office received a filing
from the Plaintiff that contained a shard of glass. 619 F. App’x 536, 536-38 (7th Cir.
2015) (nonprecedential disposition). The district court immediately dismissed the
case with prejudice, without giving the plaintiff an opportunity to contest the factual
basis for the dismissal. Id. at 537. The Seventh Circuit reversed for that reason,
noting that the plaintiff had never done anything threatening before. Id. at 536-38.
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III. Analysis
A. The Fairness of Brooks’s Hearing
Throughout the litigation of SAC’s motion for sanctions, Brooks frequently
contended that he was denied a fair opportunity to present his side of the story. That
is wrong. After SAC filed its motion for sanctions on February 22, 2019, the Court
ordered briefing. R. 37, 2/23/19 Minute Order. Brooks was directed to file a response
by March 20 that included “pertinent evidence, including his own under-oath
affidavit.” Id. The Court also set a hearing on the motion for April 2, 2019. Id. The
order specified not only that it would be a “live-witness” hearing but further required
that the parties “arrange for witness attendance (including testimony by the court
reporter).” Id. (emphasis added). On March 6, SAC filed a supplement to its motion,
including affidavits from several witnesses. R. 39, Def.’s Supp. Later that month,
Brooks filed his response, which made no reference to SAC’s supplement or any
difficulty Brooks might have had in accessing it (this becomes important later, as
explained below). R. 40, Pl.’s Resp. It also failed to include an affidavit or any other
evidence. Id. SAC then filed its reply. R. 41, Def.’s. Reply.
One day before the scheduled hearing, Brooks called the courtroom deputy to
arrange to appear telephonically. R. 42, 4/1/19 Minute Order. The Court entered an
order explaining that it should have been obvious that Brooks’s in-person appearance
would be required for a “live witness hearing.” Id. Nevertheless, “[o]ut of mercy and
not good cause,” the Court allowed Brooks to appear by telephone at the hearing. Id.
At the hearing itself, Brooks claimed for the first time that he had not received SAC’s
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supplement, R. 39, including its witnesses’ affidavits. R. 44, 4/2/19 Minute Entry;
R. 55-1, Def.’s Exh. A, Hrg. Tr. at 6:14-25. On the record, the Court made a finding
that Brooks had in fact received the supplement. The Court’s finding was based on
the record evidence. First, the CM/ECF receipt from the filing showed that it was
successfully sent to his email address. R. 44-1, CM/ECF Receipt; Hrg. Tr. at 7:1-13,
11:8-12. Second, SAC’s counsel, Susan Lorenc, credibly reported that she emailed it
directly to Brooks and that it did not bounce back. Hrg. Tr. at 9:4-16. Third, Brooks
had participated in active litigation in the case since May 2018 without ever reporting
a problem receiving CM/ECF filings to his email account. See Hrg. Tr. at 12:3-13:5.
And finally, the supplement was required to be filed by the Court’s initial order, R. 37,
and referenced on the first page of SAC’s reply, R. 41 ¶ 1, making it implausible that
Brooks—who has not shrunk from filing motions and filing objections—would have
refrained from complaining about the purported absence of the supplement after the
deadline for filing it had passed.
In light of that finding, the Court declined to postpone the hearing like Brooks
asked and instead offered to let him participate by telephone. Hrg. Tr. at 13:8-14:8.
Brooks initially stated that the would “just listen,” without asking questions. Id. 14:315:17. He then objected to Lorenc’s questions throughout the hearing and conducted
extensive cross-examination. See generally id. SAC presented six witnesses. See
generally id.
At the end of SAC’s presentation on April 2, the Court decided to continue the
hearing to April 22, 2019 to give Brooks one last chance to present evidence. Brooks
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claimed that he had video-recorded evidence of witness Jeff Hamm’s deposition, and
the Court ordered that he disclose it to SAC by April 9 if he planned to use it. R. 44,
4/2/19 Minute Entry. He did not disclose or file anything by April 9. On April 12,
Brooks filed a witness list on the docket. R. 45, Pl.’s Witness List. The list included
three video depositions, Lorenc, and three unnamed employees of either SAC or
Thompson Coburn. Id. at 1. SAC filed a motion to quash the witness list, arguing that
the video depositions were redundant with the deposition transcripts and had not
been furnished to SAC by April 9, that Lorenc’s testimony would be duplicative, and
that the witness list was untimely. R. 46, Mot. Quash at 3-5. Brooks then filed a
competing motion to continue the hearing further, because SAC had not provided its
original witness list to him until the day before the April 2 hearing (despite the fact
that SAC had filed its supplement with the same witnesses’ affidavits weeks before)
and because SAC had refused to provide him with contact information for the
unnamed witnesses on his list. R. 48, Mot. Continue ¶¶ 9-17, 20-22. The Court denied
Brooks’s motion, R. 48, and granted SAC’s, R. 46, because Brooks’s videos were not
proper under Rules 28 and 30; he did not disclose the video of Hamm’s deposition on
time; Lorenc’s testimony would be unnecessarily cumulative; and Brooks should have
subpoenaed his unnamed witnesses and sought their identities sooner. R. 49, 4/19/19
Order.
Brooks did not appear to present in-person testimony on April 22—instead, he
again appeared by telephone. R. 50, 4/22/19 Minute Order. So the Court closed the
record on the evidentiary hearing. Id. The parties submitted post-hearing briefing.
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Brooks filed an extension motion to file his response but failed to notice it for a
presentment hearing, as required by Local Rule 5.3(b). R. 57, Mot. Extension. The
Court could have denied the motion on that basis, but it instead allowed Brooks to
file his response late. R. 60, 8/7/19 Minute Order. The Court has considered Brooks’s
otherwise late-filed response, R. 61.
B. Findings of Fact
In its post-hearing brief, SAC sets out three categories of alleged misconduct.
R. 55, Def.’s Post-Hearing Br. The first is Brooks’s behavior during his depositions on
both February 21 and 22. Id. at 2-7. The second is Brooks’s conduct after the
deposition on February 22. Id. at 7-9. Finally, SAC addresses Brooks’s conduct during
his telephonic appearance at the April 2 hearing. Id. at 9-11. The Court will address
the first two categories but need not address the third.
1. Misconduct During the Depositions
a. Court Reporters
SAC’s first category of evidence relates to Brooks’s conduct during his
depositions on Thursday, February 21 and Friday, February 22. Def.’s Post-Hearing
Br. at 2-7. The court reporters for both days testified about Brooks’ conduct and
demeanor. Annette Brewer served as the court reporter on February 21. Her initial
affidavit reported that Brooks made “snide and off-the-cuff remarks deliberately
directed toward both witnesses,” and that he “exhibited an accusatory tone” and
“sense of deliberate hostility.” R. 55-2, Exh. B, Brewer Aff. at 1-2. At the hearing, she
confirmed that Brooks created an “escalating uncomfortableness” and “environment
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of contentiousness.” Hrg. Tr. at 18:17-19, 21:3-10. She also credibly testified that she
decided not to serve as the court reporter for the scheduled February 22 depositions
because of Brooks’ conduct on February 21. Hrg. Tr. at 22:12-23:12 (“It was not worth
the pay.”).
Steven Stefanik was the assigned court reporter on February 22. He also wrote
an affidavit averring that Brooks’s tone during that morning’s deposition was one of
“hostility” and that he “call[ed] defense counsel and their witness[] liars.” R. 55-3,
Exh. C, Stefanik Aff. at 1:24-2:3. At the hearing, he described Brooks’s conduct as
“short-tempered,” with a “lack of patience.” Hrg. Tr. at 61:6-10. Brewer’s and
Stefanik’s accounts of the depositions they transcribed are very similar in their
descriptions of Brooks’s conduct and attitude toward opposing counsel and the
witnesses. Their accounts corroborate each other, supporting that Brooks’ tone and
demeanor were hostile and contemptuous during the depositions at Thompson
Coburn’s office.
b. Hamm and Shorette
Two other witnesses testified about the February 21 depositions, and the two
allege a more specific threat made by Brooks. First, Jeff Hamm: he is an SAC
employee whom Brooks deposed that afternoon. On cross-examination, Brooks
elicited testimony from Hamm that the two had known each since 2001 and worked
together before. Hrg. Tr. at 124:11-14. Hamm’s deposition was contentious, to say the
least. Id. at 116:14-16 (“He was provocative. He was angry. He was trying to pick a
fight with me.”); id. at 116:19-117:1 (describing an incident in which Brooks turned
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his personal video recorder on Lorenc and started questioning her); see also R. 55-4,
Exh. D, Hamm Aff. ¶¶ 9-11 (describing the beginning of Hamm’s deposition,
including Brooks’ use of his own video camera over Lorenc’s objection). Hamm
testified credibly that he was fearful during the deposition that Brooks would
physically attack Lorenc. Hrg. Tr. at 112:19-113:8 (“I remember on two occasions
where I clenched … the armrest of my chair because I thought he was … going to
jump across the table.”); id. at 116:18-25; see also Exh. D, Hamm Aff. ¶ 26.
Most importantly, Hamm testified that at the end of the deposition, Brooks
threatened him: “[H]e made the statement that, you wait until I get to Atlanta or I
can’t wait till I get to Atlanta.” Hrg. Tr. at 114:22-24. What is important here is that
Hamm lives in Atlanta (Brooks lives in Florida). Id. at 115:4-5. Hamm testified that
Brooks grabbed his jacket, and Hamm then heard Lorenc ask, “[D]id you just threaten
my client?” Id. at 114:25-115:2. According to Hamm, he considered informing his
hometown police of Brooks’ threat but ultimately did not do so. Id. at 115:11-16.
Overall, Hamm testified that he felt unsafe during the deposition, and that he
thought Brooks’s threat was serious. Id. at 115:17-19; id. at 116:18-21. His account
at the hearing was consistent with his original affidavit. Exh. D, Hamm Aff. ¶ 24.
Jacob Shorette, SAC’s in-house corporate counsel, also attended Brooks’
deposition of Hamm. Shorette wrote in his affidavit and testified at the hearing that
Brooks was “confrontational and aggressive” during the deposition. Hrg. Tr. at
131:19-132:13; id. at 142:10-18 (testifying that Brooks at one point said to Lorenc,
“[D]on’t try to take control of my deposition ... I’ll hit back; I’m in control of this.”);
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R. 55-5, Exh. E, Shorette Aff. ¶¶ 5-6. Most importantly, Shorette also heard Brooks
say “something along the lines of, I’ll see you in Atlanta,” and the statement “came
off as threatening or menacing.” Hrg. Tr. at 133:15-134:2; Exh. E, Shorette Aff. ¶ 5(c).
And, like Hamm, Shorette heard Lorenc’s contemporaneous shocked reaction. Hrg.
Tr. at 133:20-24 (“[Lorenc] asked what that meant.”); Exh. E, Shorette Aff. ¶ 5(c)
(“SAC’s counsel asked if that was a threat.”). He also recalls encouraging Hamm to
reach out to local law enforcement in Atlanta about the threat. Hrg. Tr. at 134:14135:8; Exh. E, Shorette Aff. ¶ 7.
Shorette was also present for the deposition on February 22. He, like Stefanik,
testified that Brooks’ aggressive behavior continued on that date and that Brooks
called the witness and counsel liars. Hrg. Tr. at 135:9-17; Exh. E, Shorette Aff. ¶ 5(b).
2. After the February 22 Deposition
Next, SAC addresses Brooks’s conduct after the deposition on February 22.
Def.’s Post-Hearing Br. at 7-9. Three witnesses testified that Brooks was loud and
aggressive when his February 22 deposition was wrapping up. First, Todd Rowden,
the managing partner of Thompson Coburn’s Chicago office, testified that as he was
walking down the hallway, he heard someone “raising his voice and yelling” in a
conference room. Hrg. Tr. at 45:14-23; R. 55-6, Exh. F, Rowden Aff. ¶ 4. Rowden
walked up to the room, saw Brooks, and told him to “keep [his] voice down.” Hrg. Tr.
at 46:1-3. Rowden testified that Brooks responded “along the lines of, you can’t tell
me what to do or you can’t make me do anything.” Hrg. Tr. at 47:16-22; Exh. F,
Rowden Aff. ¶ 5. After that encounter, Rowden decided that Brooks was a threat to
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the deposition participants and that he should not be allowed back into Thompson
Coburn’s office for his Friday afternoon deposition. Hrg. Tr. at 48:3-7.
Second, Brian Blinstrup, Thompson Coburn’s Chicago office administrator,
testified that Thompson Coburn’s receptionist told him there was a “confrontational”
person in the conference center. Hrg. Tr. at 83:5-14. When he walked past the
conference room soon after, he saw distressed expressions on the participants’ faces
and heard Rowden ask Brooks to be quieter, to which Brooks responded with
something like, “I’ll say what I want and as loud as I want.” Id. at 85:10-86:3; id. at
92:14-23. Like Rowden, Blinstrup felt it would be unsafe to allow Brooks to return to
the office for his afternoon deposition. Id. at 89:5-13.
Finally, Jacob Shorette also witnessed Brooks interact with Rowden and
Blinstrup after the February 22 deposition. According to Shorette, Brooks was asked
to be quieter and then said something like, “you don’t tell me what to do or no one
tells me what to do.” Hrg. Tr. at 135:20-136:23.
3. Clear Evidence of Brooks’ Threat to Hamm
The hearing witnesses painted a clear picture of Brooks’ hostile and aggressive
behavior during both the February 21 and February 22 depositions. Brewer and
Stefanik—while they did not testify specifically to the threat that Hamm and
Shorette recounted—credibly testified to Brooks’ tone and demeanor in both
depositions. The court reporters were particularly credible because they are neutral
parties in the underlying dispute. Most importantly, their testimony about Brooks’s
overall hostility—while it might not be sanctionable in and of itself—bolsters Hamm’s
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and Shorette’s allegations that Brooks’ made a specific threat against Hamm. In other
words, the court reporters’ descriptions of Brooks’ rude, confrontational, and
aggressive manner make it more likely that he did in fact threaten Hamm.
Hamm and Shorette both credibly testified that Brooks made the thinly veiled
threat: “I’ll see you in Atlanta.” To be sure, Hamm’s and Shorette’s versions do not
match verbatim in the exact wording of the threat, but that is not surprising given
that the threat came out-of-the-blue. Indeed, it would be less credible if Hamm’s and
Shorette’s versions matched word-for-word. And they both remembered Lorenc’s
contemporaneous reaction and question (“Did you just threaten my client?”), which
also helps confirm that Brooks made the threat and that he used a threatening tone.
For his part, Brooks has failed to present any record evidence other than assertions
in briefs.
What’s more, SAC presented credible evidence on Brooks’ interaction with
Rowden and Blinstrup after the deposition on the morning of February 22. Although
yelling at Rowden and other participants may not be sanctionable conduct on its own,
like the court reporters’ testimony described above, it strengthens the likelihood that
Brooks threatened Hamm on February 21.
In light of the record evidence, the Court finds by a preponderance of the
evidence that Brooks threatened Hamm at the end of his deposition. Indeed, the
evidence would meet a clear-and-convincing standard of proof.
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C. The Appropriate Sanction
Although Brooks “only” made the one threat against Hamm, the seriousness of
the misconduct justifies dismissing the case with prejudice for abuse of process. There
is no reasonable and workable alternative to dismissal. Brooks has not proposed one.
And short of an extreme measure like hiring security for depositions and any inperson encounters between Brooks and SAC (such as status and motion hearings,
and ultimately a potential trial), there is nothing else that can alleviate the threat.
SAC and Thompson Coburn have a reasonable fear for their employees’ safety. Nor
was a prior warning needed: threatening someone with physical harm is plainly
misconduct, and Brooks’ pro se status does not change that fact. The right sanction is
to dismiss this case with prejudice.
IV. Conclusion
For the reasons explained above, this case is dismissed with prejudice for abuse
of process. The status hearing of September 19, 2019 is vacated.
ENTERED:
s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: August 23, 2019
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