Miller et al v. Plymouth City of et al

Filing 511

ORDER ACCEPTING 379 Report and Recommendations in its entirety; granting in part and denying in part 325 Joint Motion for Sanctions ; parties to submit payments within 14 days as set forth in order. Signed by Judge Joseph S Van Bokkelen on 9/30/11. (mc) Modified on 9/30/2011 to show cc: K. and J. Miller(mc).

United States District Court
Northern District of Indiana
Hammond Division
KEVIN D. MILLER and JAMILA D. MILLER, )
)
Plaintiffs,
)
)
v.
)
)
CITY OF PLYMOUTH, et al.,
)
)
Defendants.
)

Civil Action No. 2:09-CV-205 JVB

ORDER
Magistrate Judge Paul Cherry issued a Report and Recommendation (DE 379) on
Plaintiffs’ Joint Motion for Sanctions Against Plymouth Defendants for Discovery Abuses (DE
325). Judge Cherry recommended that the Court grant in part and deny in part Plaintiffs’ motion
and award certain sanctions against Defendants and their counsel. Both sides timely objected to
the Report and Recommendation.
Judge Cherry’s Report addresses six discovery contentions:
(1)

Officer Weir’s defiance of multiple Court orders to provide the addresses of
potential witnesses;

(2)

the City’s defiance of the Court’s order to produce outstanding case reports;

(3)

the City’s defiance of the Court’s order to produce video evidence;

(4)

Officer Weir’s failure to produce documents concerning or relating to allegations
of misconduct against him;

(5)

the Plymouth Defendants’ attorney’s failure to advise his clients to implement a
litigation hold on requested video evidence or amend the Plymouth Police

Department’s video retention/destruction policy; and
(6)

the Plymouth Defendants’ improper withholding of relevant, unprivileged
information and documents.

Neither side objected to Judge Cherry’s recommendation to deny sanctions against
Defendants on the last three contentions. Accordingly, the Court will accept them as
recommended.
Contentions (1) through (3) arose out of Defendants’ and their counsel’s defiance,
individually and collectively, to turn over the requested evidence to Plaintiffs. Judge Cherry
details Defendants’ failures to obey the Court’s orders time after time and describes their
attempts to contravene what has been asked of them. Having explained thoroughly Defendants’
and their counsel’s violations, Judge Cherry recommends that they and their counsel be fined in
the amount of $2,000. In addition, Judge Cherry recommends that the City and its counsel
reimburse Plaintiffs $298.50, which is what it cost Mr. Miller’s to obtain the transcript of the
December 16, 2010, hearing in support of Plaintiffs’ motion for sanctions.
In their objection to Judge Cherry’s recommendations, Defendants submit the same
arguments that got them into hot water in the first place. If Defendants at any point thought that
Judge Cherry’s orders to compel were unreasonable, they had the option of seeking relief.
Instead, they failed to comply with the orders without an explanation and, in the end, without
justifiable reason. Judge Cherry’s recommendation of fines is appropriate both in kind and
amount for this reticence. Likewise, Judge Cherry’s recommendation that Plaintiffs be
reimbursed for the costs of the transcript is well-suited.
In their objection, Plaintiffs argue that Judge Cherry’s recommended fines are too small

2

and they will not deter Defendants from further defiance of Court’s orders. Plaintiffs, therefore,
insist that Defendants should suffer greater fines, be prohibited from opposing Monell claims,
and ultimately have default judgment entered against them. The Court agrees with Judge Cherry
that a larger fine or evidentiary sanctions would be excessive of what is needed to bring
Defendants back in compliance with the Court’s orders.
Having considered Judge Cherry’s well-reasoned Report and Recommendation, the Court
overrules Plaintiffs’ objections (DE 396), overrules Defendants’ objections (DE 392), and
ACCEPTS the Report and Recommendation (DE 379) in its entirety.
Accordingly, the Court—
•

GRANTS in part and DENIES in part Plaintiffs’ Joint Motion for Sanctions
Against the Plymouth Defendants for Discovery Abuses (DE 325); and

•

ORDERS that, within 14 days—
•

(1) Officer Weir and counsel pay to the Clerk of this Court a fine
of $1,000;

•

(2) the City of Plymouth and counsel pay to the Clerk of this Court
a fine of $1,000; and

•

(3) the City of Plymouth and counsel pay $298.50 directly to Mr.
Miller.

SO ORDERED on September 30, 2011.

s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge

3