Martin v. Indiana State of et al
OPINION AND ORDER re 44 MOTION to Dismiss for Failure to Comply with Discovery; or Alternatively, Motion to Compel Deposition by Defendants Officer Addison, Fort Wayne City of, Ft Wayne Police Dept. Motion 44 is GRANTED to the extent that Pla is to appear at and participate in his own deposition. The Court, on its own motion, reopens discovery solely for the purpose of allowing Dfts to depose Pla on or before 12/2/2014. Pla should consider himself duly warned that any discovery transgress ions, such as a failure to appear for or participate in a deposition-whether proceeding pro se or represented by counsel-may result in sanctions against him, up to and including dismissal of this action. Signed by Magistrate Judge Roger B Cosbey on 10/14/2014. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANTHONY C. MARTIN,
CITY OF FORT WAYNE, et al.,
CAUSE NO. 1:12-CV-00069
OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss for Failure to Comply With
Discovery; or Alternatively, Motion to Compel Deposition (Docket # 44) filed on August 22,
2014, by Defendants City of Fort Wayne, the Fort Wayne Police Department, and Officer
Gregory Addison (collectively, “Defendants”). Defendants ask that the Court dismiss this case
under Federal Rule of Civil Procedure 37(b) as a sanction for pro se Plaintiff Anthony Martin’s
failure to appear for his noticed deposition, or alternatively, compel Martin to appear at and
participate in his own deposition. (Docket # 44.) Martin, who is incarcerated, filed a response
opposing Defendants’ motion on September 23, 2014 (Docket # 50); Defendants have not filed a
reply, and the time to do so has now passed.
A. Factual and Procedural Background
Martin filed this 42 U.S.C. § 1983 case against Defendants on January 24, 2012, alleging
various federal and state law claims arising from a December 15, 2010, encounter.1 (Docket # 1.)
Martin also sued a host of other state, county, and individual defendants as a result of the December 15,
2010, encounter, but those defendants were dismissed on March 29, 2013; only the three Defendants remain in the
case. (Docket # 21.)
Specifically, Martin claims that Defendants arrived at his residence in response to what appeared
to be a domestic dispute, entered his home without consent or a warrant, and then used excessive
force against him. (Docket # 1.)
On April 29, 2014, this Court set a deadline of May 30, 2014, for any amendments to the
pleadings, and a deadline of August 29, 2014, for the completion of all discovery. (Docket # 31.)
Not long thereafter, the Court set a deadline of September 29, 2014, for the filing of any
dispositive motions. (Docket # 36.)
On May 7, 2014, Defendants filed a motion for leave to take Martin’s deposition on June
18, 2014 (Docket # 34); this Court granted the motion (Docket #37). Defendants mailed the
notice of deposition to Martin at the Allen County Jail that same day. (Docket # 39.)
On June 26, 2014, Defendants filed a second motion for leave to take Martin’s
deposition, explaining that although Martin appeared for the June 18th deposition, he indicated
he did not want to answer any questions until he had an attorney to represent him; accordingly,
Defendants agreed to reschedule the deposition for August. (Docket # 41.) The Court granted
Defendants’ second motion to take Martin’s deposition, which was set for August 1, 2014.
(Docket 42.) On June 30, 2014, Defendants mailed the notice of deposition to Martin at the
Allen County Jail. (Docket # 43.)
On August 22, 2014, Defendants filed the instant motion, reciting that their counsel
attempted to depose Martin at the Allen County Jail on August 1, 2014, but a confinement
officer indicated that when Martin was called to come down for his attorney visit, he “refused to
come down.” (Docket # 44, Ex. I.) Martin filed a response on September 23, 2014, disputing
Defendants’ version of the events. (Docket # 50.)
B. Applicable Legal Standard
Federal Rule of Civil Procedure 37(b) provides that “[i]f a party . . . fails to obey an order
to provide or permit discovery . . ., the court where the action is pending may issue further just
orders[, including] . . . dismissing the action or proceeding in whole or in part . . . .” Fed. R. Civ.
P. 37(b)(2)(A). “The simple failure to comply is enough [to warrant sanctions], notwithstanding
a complete lack of culpability on [the plaintiff’s] part.” Halas v. Consumer Servs., Inc., 16 F.3d
161, 164 (7th Cir. 1994). That is, “the culpability of a party who fails to comply with a court
order determines only which sanctions the court should impose and not whether any sanctions
are appropriate at all.” Id. (citations omitted). “[A]n award of sanctions must be proportionate to
the circumstances surrounding the failure to comply with discovery.” Crown Life Ins. Co. v.
Craig, 995 F.2d 1376, 1382 (7th Cir. 1993); accord Martin v. Fort Wayne Police Dep’t, No.
1:04-cv-450, 2005 WL 3118020, at *3 (N.D. Ind. Nov. 21, 2005).
In that regard, “a finding of willfulness, bad faith, or fault . . . comes into play when
dismissals are used specifically as a discovery sanction under [Rule] 37.” Maynard v. Nygren,
332 F.3d 462, 467-68 (7th Cir. 2003); accord In re Golant, 239 F.3d 931, 936 (7th Cir. 2001).
The Seventh Circuit Court of Appeals has cautioned that a court must use its dismissal power
sparingly, as it is a “harsh sanction” which should “be employed only as a last resort.” Rice v.
City of Chicago, 333 F.3d 780, 786 (7th Cir. 2003); see also Maynard, 332 F.3d at 467 (stating
that “[o]f all possible sanctions, dismissal is considered ‘draconian’” and that the court must be
“vigilant” in its review of such actions).
Defendants request that this case be dismissed as a sanction under Rule 37(b) for
Martin’s failure to submit to his deposition. They emphasize that Martin received notice of the
deposition set on two different dates and that his failure to submit warrants dismissal of his case.
Alternatively, Defendants ask that the Court compel Martin to comply with their deposition
request. (Docket # 44.)
Martin disputes Defendants’ request for sanctions. First, he explains that he did not
answer the questions at the June 18th deposition because he did not have a lawyer and feared the
deposition might lead to criminal prosecution. Second, he denies ever telling an Allen County
Jail officer on August 1, 2014, that he would not come down for his deposition. Martin argues
that Allen County Jail personnel routinely retaliate against him for filing multiple lawsuits, and
thus, that the confinement officer fabricated Martin’s refusal. (Docket # 50.)
Considering Martin’s version of the events, the draconian sanction of dismissal is simply
not proportionate to the objectionable conduct in this instance–the failure to submit to the
August 1, 2014, deposition at the Allen County Jail. That is, on this record, there is insufficient
evidence of “willfulness, bad faith, or fault” that would warrant dismissal as a sanction.
Maynard, 332 F.3d at 467-68; see GCIU Emp’r Ret. Fund v. Chicago Tribune Co., 8 F.3d 1195,
1199 (7th Cir. 1993) (“The drastic nature of a dismissal with prejudice requires the action to be
used only in extreme situations, when there is a clear record of delay or contumacious conduct,
or when other less drastic sanctions have proven unavailable.” (emphasis in original; citation and
internal quotation marks omitted)). Perhaps Defendants now recognize this as well, as they
opted not to reply to Martin’s proffered explanation.
Indeed, although he declined to answer questions because he did not have counsel,
Martin did at least appear for the June 18th deposition. And Defendants do not suggest that they
have been unduly prejudiced by Martin’s failure to appear at the August 1st deposition. See
Robinson v. Petyo, No. 2:06-cv-433, 2010 WL 148300, at *6 (N.D. Ind. Jan. 13, 2010) (“[A]
court may consider prejudice to the [defendants] caused by the [plaintiff’s] conduct.”).
Therefore, Defendants’ request for dismissal of this suit as a sanction under Rule 37(b) will be
Defendants’ alternative request–to compel Martin to submit to his own
deposition–however, will be GRANTED. The Court will, on its own motion, reopen discovery
solely for the purpose of allowing Defendants to depose Martin either telephonically or in person
at his place of incarceration.
Martin should consider himself duly warned that any discovery transgressions, such as a
failure to appear for or participate in a deposition2–whether proceeding pro se or represented by
counsel–may result in sanctions against him, up to and including dismissal of this action. Woods
v. Chicago Transit Auth., No. 04 C 04124, 2006 WL 2460618, at *4 (N.D. Ill. Aug. 18, 2006)
(articulating that because of the extremely harsh nature of the sanction of dismissal, some courts
have considered it improper to dismiss a case under Rule 37(b) “unless the non-complying party
has been sufficiently warned that further intransigence warrants dismissal” (citing Ladien v.
Astrachan, 128 F.3d 1051, 1057 (7th Cir. 1997))).
“[A] plaintiff’s refusal to participate in his deposition is, in essence, a failure to appear.”McClenton v.
Walker, No. 06-2033, 2008 WL 345533, at *2 (C.D. Ill. Feb. 6, 2008). “Plaintiffs do not have the right to refuse to
answer questions on the ground that they are ‘in want of counsel.’” Sparrgrove v. Wachter, No. 04-c-0021-c, 2004
WL 1196888, at *1 (W.D. Wis. May 18, 2004) (“Not only do the parties have an obligation to attend a deposition if
they are given notice of the deposition, they have the obligation to answer the questions put to them.”).
For the foregoing reasons, Defendants’ Motion to Dismiss for Failure to Comply With
Discovery; or Alternatively, Motion to Compel Deposition (Docket # 44) is GRANTED to the
extent that Plaintiff is to appear at and participate in his own deposition. The Court, on its own
motion, reopens discovery solely for the purpose of allowing Defendants to depose Plaintiff on
or before December 2, 2014. Plaintiff should consider himself duly warned that any discovery
transgressions, such as a failure to appear for or participate in a deposition–whether proceeding
pro se or represented by counsel–may result in sanctions against him, up to and including
dismissal of this action.
Enter for this 14th day of October, 2014.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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