McDaniel v. Elgin
Filing
70
OPINION AND ORDER granting in part and denying in part 45 , 58 Motions to Dismiss, Exclude Evidence and for Discovery Sanctions. Signed by Magistrate Judge Andrew P Rodovich on 7/13/11. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GARY McDANIEL,
Plaintiff
v.
MARY ELGIN, Calumet Township
Trustee; INDIANA DEPARTMENT OF
WORKFORCE DEVELOPMENT,
Defendants
)
)
)
)
)
)
)
)
)
)
)
CIVIL NO. 2:09-cv-119
OPINION AND ORDER
This matter is before the court on the Motion to Dismiss,
Exclude Evidence and for Discovery Sanctions Pursuant to F.R.C.P.
37(b)(2) [DE 45] filed by the defendant, Mary Elgin, on April 19,
2011, and the Amended Second Motion to Dismiss, Exclude Evidence
and for Discovery Sanctions Pursuant to F.R.C.P. 26(g) and
37(b)(2) [DE 58] filed by defendant Elgin on May 26, 2011.
For
the following reasons, the Motion to Dismiss, Exclude Evidence
and for Discovery Sanctions Pursuant to F.R.C.P. 37(b)(2) [DE 45]
and the Amended Second Motion to Dismiss, Exclude Evidence and
for Discovery Sanctions Pursuant to F.R.C.P. 37(b)(2) [DE 58] are
GRANTED IN PART and DENIED IN PART.
Background
On November 16, 2010, the defendant, Mary Elgin, served a
request for production of documents and interrogatories on the
plaintiff, Gary McDaniel.
The parties agreed to extend the time
for McDaniel to respond up to and including January 13, 2011.
McDaniel provided a response to Elgin’s interrogatories on that
day and responded to her request for production of documents the
following day.
On January 19, 2011, and January 24, 2011,
respectively, Elgin informed McDaniel that his responses to the
production requests and interrogatories were evasive, incomplete,
and non-responsive.
Elgin represents that she made several
attempts to procure complete responses from McDaniel before
filing a motion to compel on February 10, 2011.
McDaniel did not
respond to Elgin’s motion to compel within the time contemplated
by the local rules, and Elgin filed a motion for summary ruling.
Elgin states that she informed McDaniel of the pending motion to
compel in her correspondence to schedule depositions.
McDaniel
did not respond to Elgin’s motion for summary ruling.
Noting the lack of response to Elgin’s motion to compel
responses to her request for interrogatories, the court granted
Elgin’s motion to compel and directed McDaniel to serve complete
and non-evasive responses within ten days.
McDaniel failed to
supplement his responses to the interrogatories within the time
ordered by the court and now explains that he did not receive a
copy of the court’s March 2, 2011 Order because it went to his
counsel's spam folder.
McDaniel contends that he subsequently
2
tendered amended discovery.
McDaniel also has complained of the
difficulties the parties faced scheduling depositions.
Elgin filed a second motion for sanctions on May 26, 2011,
explaining that McDaniel lied in his response to her first motion
for sanctions.
Elgin contends that McDaniel did not serve
amended discovery responses until after he filed his response to
her first motion for sanctions, although he stated that he had
done so in his response.
McDaniel’s amended responses were post-
marked one day before he filed his response to Elgin’s first
motion for sanctions, but Elgin did not receive the amended
responses until eight days after McDaniel filed his response.
Although Elgin acknowledges that McDaniel served amended discovery responses, the responses were not filed within the deadline
imposed by the court.
Moreover, Elgin complains that the newly
amended responses are prejudicial because discovery closed May 5,
2011, and dispositive motions were due May 31, 2011, so Elgin was
not afforded an opportunity to conduct discovery on McDaniel’s
new contentions.
Discussion
Federal Rule of Civil Procedure 37(b)(2) gives the court
authority to sanction a party for failing to comply with a court
order and states in relevant part:
(2) Sanctions in the District Where the Action Is Pending.
3
(A) For Not Obeying a Discovery
Order. If a party or a party's
officer, director, or managing
agent – or a witness designated
under Rule 30(b)(6) or 31(a)(4) –
fails to obey an order to provide
or permit discovery, including an
order under Rule 26(f), 35, or
37(a), the court where the action
is pending may issue further just
orders. They may include the following:
(i) directing that the
matters embraced in the
order or other designated
facts be taken as established for purposes of
the action, as the prevailing party claims;
(ii) prohibiting the
disobedient party from
supporting or opposing
designated claims or
defenses, or from introducing designated matters
in evidence;
(iii) striking pleadings
in whole or in part;
(iv) staying further
proceedings until the
order is obeyed;
(v) dismissing the action
or proceeding in whole or
in part;
(vi) rendering a default
judgment against the
disobedient party; or
4
(vii) treating as contempt of court the failure to obey any order
except an order to submit
to a physical or mental
examination.
The authority to sanction a non-compliant party also arises from
the court’s inherent power to manage its cases and to achieve an
orderly disposition.
See Chambers v. NASCO, Inc., 501 U.S. 32,
44, 47, 111 S.Ct. 2123, 2132, 2134, 115 L.Ed.2d 27 (1991) (explaining that the court has broad inherent powers to sanction a
party); Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir.
1993).
The court should consider several factors when determin-
ing which sanctions to apply, including: "the frequency and magnitude of the [party's] failure to comply with court deadlines,
the effect of these failures on the court's time and schedules,
the prejudice to other litigants, and the possible merits of the
plaintiff's suit."
Rice v. City of Chicago, 333 F.3d 780, 784
(7th Cir. 2003) (citing Williams v. Chicago Bd. of Educ., 155
F.3d 853, 857 (7th Cir. 1998)).
The sanctions must be propor-
tional to the party’s misconduct.
693, 696-698 (7th Cir. 2009).
Collins v. Illinois, 554 F.3d
The court measures this by weigh-
ing the proposed sanctions against the egregiousness of the
party’s conduct.
Barnhill, 11 F.3d at 1368.
Dismissal is the most severe sanction and generally is
applied only when a party has displayed exceptional misconduct or
5
when less drastic sanctions have proven unavailing.
Sun v. Board
of Trustees, 473 F.3d 799, 811 (7th Cir. 2007) (explaining that
the Seventh Circuit has a well established policy of favoring
trial on the merits over default judgments); Maynard v. Nygren,
332 F.3d 462, 467-68 (7th Cir. 2003); Danis v. USN Communica-
tions, Inc., 2000 WL 1694325, *33-34 (N.D. Ill. Oct. 23, 2000)
("Because a default judgment deprives a party of a hearing on the
merits, the harsh nature of this sanction should usually be
employed only in extreme situations where there is evidence of
willfulness, bad faith or fault by the noncomplying party")
(citing Societe Internationale v. Rogers, 357 U.S. 197, 209, 78
S.Ct. 1087, 2 L.Ed.2d 1255 (1958) (explaining that a party should
only be sanctioned with dismissal in extreme situations where
there is evidence of willfulness, bad faith, or fault by the
noncomplying party)).
The court first must consider whether less
severe sanctions will remedy the damage.
Marrocco v. General
Motors, 966 F.2d 220, 223-24 (7th Cir. 1992).
The Seventh Circuit has employed two different standards for
determining whether dismissal is an appropriate sanction.
The
court should consider whether there has been a clear record of
delay or contumacious conduct, or whether less drastic sanctions
have been unavailing, when assessing dismissal for want or prosecution or failure to comply with a court order.
6
Maynard, 332
F.3d at 468-69; Large v. Mobile Tool International, Inc., 2008
WL 2116967, *7 (N.D. Ind. 2008) ("[C]ontumacious conduct merits
strong sanctions, and when the court uses its inherent power to
root out contumacious conduct, no showing of willfulness, bad
faith, fault or even prejudice is required."). "A slightly
different requirement - a finding of willfulness, bad faith or
fault - comes into play when dismissals are used specifically as
a discovery sanction under Fed.R.Civ.P. 37."
Maynard, 332 F.3d
at 468-69 (citing In re Golant, 239 F.3d 931, 936 (7th Cir.
2001); Langley v. Union Electric Co., 107 F.3d 510, 514 (7th Cir.
1997); In re Rimsat, Ltd., 212 F.3d 1039, 1046-47 (7th Cir. 2000)
(requiring a finding of bad faith when a district court dismisses
a case under the inherent powers of the court)).
"That is, even
without 'a clear record of delay, contumacious conduct or prior
failed sanctions,' a court can apply the sanction of dismissal
for Rule 37 violations with a finding of willfulness, bad faith
or fault, as long as it first considers and explains why lesser
sanctions would be inappropriate."
Maynard, 332 F.3d at 468.
See also Melendez v. Illinois Bell Co., 79 F.3d 661, 671 (7th
Cir. 1996) ("Sanctions are proper upon a finding of wilfulness,
bad faith, or fault on the part of the noncomplying litigant.").
Bad faith is "conduct which is either intentional or in
reckless disregard of a party’s obligations to comply with a
7
court order.
Marrocco, 966 F.2d at 224; Maynard, 332 F.3d at 470
(explaining that bad faith is exhibited where a party fails to
comply with a court order or provides false or misleading responses).
Similarly, fault does not mean the party’s subjective
motivation, but rather "the reasonableness of the conduct — or
lack thereof — which eventually culminated in the violation."
Marrocco, 966 F.2d at 224; Langley, 107 F.3d at 514.
The Seventh
Circuit requires clear and convincing evidence of the discovery
abuse to justify a default judgment because of the harsh nature
of the penalty and the court’s policy of favoring trial on the
merits.
Maynard, 332 F.3d at 468 ("[C]onsidering the severe and
punitive nature of dismissal as a discovery sanction, a court
must have clear and convincing evidence of willfulness, bad faith
or fault before dismissing a case."); Larson v. Bank One Corp.,
2005 WL 4652509, *9 (N.D. Ill. August 18, 2004) (explaining that
a default judgment requires clear and convincing evidence of the
sanctionable conduct, although an issue-related sanction requires
only a preponderance of the evidence).
McDaniel has displayed sanctionable behavior throughout the
discovery process.
To begin, his initial responses to Elgin’s
discovery requests clearly were insufficient.
For example, when
asked to identify specific events of harassment, McDaniel made
vague statements such as he was harassed each and every day, and
8
when asked for specific information about his request to transfer, McDaniel only stated that he made the request orally.
McDaniel then refused to cooperate with Elgin in supplementing
his responses, causing Elgin to seek court intervention.
McDan-
iel did not file a response to Elgin’s motion to compel and
provided no explanation for his refusal to provide the appropriate responses to Elgin’s discovery requests, wasting the resources of both the defendant and the court.
If McDaniel did not
have any legal justification for his failure to provide complete
discovery responses, he should have resolved the matter before
Elgin was forced to file a motion to compel or sent the complete
responses after Elgin first filed her motion to compel.
Moreover, in his response to Elgin’s motion for sanctions,
McDaniel did not provide any explanation for his failure to
respond to Elgin’s motion to compel, despite ample warning from
Elgin of the pending motion.
Nor does McDaniel state that he
ever believed his original discovery responses were sufficient.
McDaniel more or less acknowledges his failure to provide appropriate responses and to supplement them within the time provided
by the court.
The only justification McDaniel offered for
failing to comply with the court’s order to supplement his
responses within ten days was that notice of the order was sent
to his counsel's spam box.
However, it is an attorney’s duty to
9
stay abreast of her cases.
McDaniel does not contend that he was
unaware of the motion to compel or the motion for summary ruling,
and therefore should have been aware that an order was forthcoming.
This explanation is a further display of McDaniel’s attor-
ney’s reluctance to manage this case, comply with deadlines, and
cooperate with Elgin.
McDaniel has ignored the court’s deadlines
and orders without any sufficient explanation as to why he was
unable to comply.
Although McDaniel eventually provided amended responses to
Elgin’s discovery requests, his responses were served well past
the court ordered deadline, and he has offered no justification
for failing to provide complete responses originally, failing to
resolve the issue without court intervention, and failing to
serve complete responses from the time he was served with Elgin’s
discovery requests until two months after the court ordered him
to comply.
Furthermore, Elgin did not receive the amended
responses until eight days after McDaniel filed his response to
the motion for sanctions, indicating that he may have deceived
the court on when he sent the amended discovery.
McDaniel does
not dispute Elgin’s contention that he sent the amended discovery
after he filed his response to Elgin’s first motion for sanctions.
McDaniel also identified witnesses, stating they would
collaborate his contentions and were witnesses to the alleged
10
harassment.
However, at their depositions, the witnesses McDan-
iel identified stated that they did not witness the alleged
harassment.
McDaniel then responsed to Elgin’s interrogatories
in an effort to fill in the gaps left by his witnesses’ lack of
substantive testimony.
However, the amended responses were sent
six months after Elgin first served the discovery requests, two
months after the court ordered McDaniel to provide complete
responses, after the discovery deadline, and shortly before the
dispositive motion deadline, limiting Elgin’s opportunity to
conduct further discovery of the contentions McDaniel made within
his amended responses.
McDaniel also deceived Elgin when he stated in his first
response to her request for interrogatories that he provided
complete responses with the information then available.
McDan-
iel’s amended responses suggest that he had the information at
the time he first responded to Elgin’s interrogatories, and
McDaniel does not deny that he had the requested information when
he first responded.
McDaniel has not given any explanation of
how he acquired knowledge between his first and amended responses
to Elgin’s request for interrogatories of the events and damages
that gave rise to this cause of action.
McDaniel only states
that he provided amended responses without acknowledging his
justifications for originally failing to provide complete re-
11
sponses, failing to respond to Elgin’s motion to compel, and
failing to provide complete responses within the court ordered
deadline.
Because McDaniel provided insufficient discovery responses,
failed to cooperate with Elgin, did not file a response to Elgin’s motion to compel, did not comply with the court’s order in
a timely manner, and deceived the court and Elgin on multiple
occasions, the court finds that he conducted himself in a way
deserving of sanctions.
The court must now determine the appro-
priate sanctions.
Elgin argues that McDaniel’s refusal to cooperate and his
deliberate decision to ignore the court’s order is deserving of
dismissal of this action.
However, dismissal is a severe sanc-
tion, and the court must first consider less severe penalties.
The court previously sanctioned McDaniel by compelling him to pay
the costs associated with Elgin’s motion to compel.
However,
this was not enough to motivate McDaniel to follow court orders
and to cooperate with discovery.
For this reason, the court
believes harsher penalties must be imposed.
In failing to
provide proper discovery responses within the discovery period
and court ordered deadline, McDaniel inhibited Elgin’s ability to
explore the contentions McDaniel raised in his amended interrogatory responses.
The court finds that the most appropriate
12
sanction to remedy this prejudice is to prohibit McDaniel from
presenting evidence that exceeds the scope of his original
responses to Elgin’s interrogatory requests.
More specifically, in response to interrogatory 3, which
requested information about McDaniel’s employment history,
McDaniel originally referred Elgin to documents P1 to P37 provided in response to Elgin’s request for production of documents.
McDaniel is, therefore, limited to introducing only these documents to show his post-termination history.
Interrogatory 5 asked McDaniel to identify and to give
specific information regarding "every instance, time or occasion
[he] received an unwelcomed sexual advance from Phyllis Harvey or
[was] a victim of sexual harassment by Phyllis Harvey."
McDaniel
identified four specific instances and further stated he was
"harassed each and every day" as well as "on one occasion" by
Phyllis Harvey.
Because McDaniel failed to provide specific
information of any events that may have occurred beyond the four
specific incidents he identified, he is prohibited from introducing evidence of any other events and from introducing more specific evidence of the harassment he alleges to have suffered each
and everyday.
The four identified events are hereby deemed the
sole and exclusive allegations of sexual discrimination or
harassment.
13
When asked the same question of Mary Elgin, McDaniel denied
being a victim of sexual harassment by Mary Elgin, but he did not
specifically state whether he ever received an unwelcomed sexual
advance from Elgin.
The court construes this response as an
agreement that Elgin never made an unwelcomed sexual advance
toward McDaniel, and McDaniel is prohibited from showing otherwise.
Interrogatory 10 asked McDaniel to identify all witnesses to
the occurrences of which he complained.
McDaniel identified
Rosemary Rodriguez as an occurrence witness to an incident that
occurred on January 9, 2008.
In Interrogatory 12, McDaniel
identified three individuals, Cora Harris, Derrick Raspberry, and
Magnolia Lewis, as witnesses of McDaniel’s refusal to go into
Phyllis Harvey’s office.
McDaniel is limited to introducing
Rodriguez and the individuals identified in response to Interrogatory 12 as occurrence witnesses to the specific events he
identified the witnesses as having knowledge of.
Moreover,
McDaniel listed only three dates that he refused to enter Phyllis
Harvey’s office, and therefore, may not introduce evidence of
other similar occurrences.
In Interrogatories 11 and 26, McDaniel was asked to give
specific information surrounding his request to transfer because
of the harassment he experienced.
14
McDaniel is limited to intro-
ducing evidence directly related to his response that the request
was made orally and may not submit additional evidence concerning
his request to transfer.
Interrogatory 14 asked McDaniel for information supporting
his allegation that he was discharged for political reasons.
McDaniel’s response states in its entirety that he was terminated
shortly after giving a deposition in Velia Taneff’s federal case.
McDaniel did not describe any facts or circumstances explaining
how his termination was politically charged, and he is hereby
precluded from introducing any additional information that he was
discharged due to political reasons.
Interrogatory 15 sought information regarding McDaniel’s
refusal to purchase political tickets from the defendant, and
Interrogatory 16 asked for McDaniel’s support for his claim that
he was punished for refusing to purchase the tickets.
In re-
sponse, McDaniel simply stated that he refused to purchase
tickets on each occasion and that he was "denied a promotion on
an ongoing basis and refused requested training."
Similarly, in
response to Interrogatory 17 inquiring about McDaniel’s claim
that he was denied a salary raise and promotion for refusing to
purchase tickets, McDaniel responded "asked and answered."
Be-
cause McDaniel did not explain how his refusal to buy political
tickets played any role in his failure to procure a promotion,
15
additional training, or salary raise, McDaniel is precluded from
introducing evidence that he was punished for failing to purchase
political tickets.
McDaniel also failed to explain how his civil rights were
violated by Phyllis Harvey and Elgin, and is denied leave to
introduce evidence of the same.
McDaniel referred Elgin back to his response to Interrogatory 5 in his answer to Interrogatories 21, 22, 23, 24, and 25.
Therefore, he is limited to the evidence introduced in his
response to Interrogatory 5, and subject to the limitations the
court imposed on his response to Interrogatory 5, to show any
sexual encounters with Harvey or that Harvey created a hostile
work environment.
McDaniel also gave vague responses to Elgin’s request for
production of documents.
He identified the documents relevant to
the requests as "those produced herein","none at this time", or
"none other than those prepared in anticipation of litigation."
In light of McDaniel’s vague and incomplete responses, he is
prohibited from introducing into evidence any documents other
than the documents numbered CT 001 to CT 1395 and pages P1 to P37
provided in response to Elgin’s discovery requests, and related
documents which were disclosed and exchanged during discovery
16
between the parties in connection with production requests 5, 7,
9, 11, 12, 15, 18, 20, 23, 25, 27, 28, 29, 32, 33, and 39.
In the event that McDaniel successfully proves his case
despite these limitations, the court will not prohibit the
introduction of evidence establishing the amount of damages he
suffered despite his failure to explain adequately his damages in
his response to Interrogatory 2.
This is because the jury
requires a basis on which to assess damages and denying the right
to introduce evidence of the same would create confusion and may
have the effect of dismissing McDaniel’s suit.
Rule 37(d)(3) also states that the court must order the
party failing to act or his attorney to pay the reasonable fees
and expenses of the party requesting sanctions unless the refusal
to provide the information was substantially justified.
Because
McDaniel has not offered any explanation for failing to provide
complete responses within a timely manner, McDaniel is further
ORDERED to pay all costs incurred by Elgin in filing the present
motions and seeking sanctions against McDaniel.
_______________
Based on the foregoing, the Motion to Dismiss, Exclude
Evidence and for Discovery Sanctions Pursuant to F.R.C.P.
37(b)(2) [DE 45] filed by the defendant, Mary Elgin, on April 19,
2011, and the Amended Second Motion to Dismiss, Exclude Evidence
17
and for Discovery Sanctions Pursuant to F.R.C.P. 26(g) and
37(b)(2) [DE 58] filed by defendant Elgin on May 26, 2011, are
GRANTED IN PART and DENIED IN PART.
ENTERED this 13th day of July, 2011
s/ ANDREW P. RODOVICH
United States Magistrate Judge
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?