Bray v. United Water

Filing 39

OPINION AND ORDER granting 34 Motion to Dismiss Pursuant to FRCP 37(b)(2)(A) and denying as moot 31 Motion for Summary Judgment. This case is DISMISSED with prejudice. Court further ORDERS that Mr. Bray and his attorney shall pay United Water it s reasonable attorney fees and costs incurred in bringing the motion, including the time spent in preparing the reply brief. United Water to FILE with the Court on or before 5/24/2011 an itemized statement of attorney fees and costs. Signed by Magistrate Judge Paul R Cherry on 5/10/11. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ANTHRICE D. BRAY,
Plaintiff,

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v.
UNITED WATER,
Defendant.

CAUSE NO.: 2:10-CV-157-PRC

OPINION AND ORDER
This matter is before the Court on Defendant’s Motion for Summary Judgment [DE 31], filed
by Defendant United Water1 on March 21, 2011, and on Defendant’s Motion to Dismiss Pursuant
to FRCP 37(b)(2)(A) for Willful Noncompliance with the Court’s January 31, 2011 Order or, in the
Alternative, for Such Lesser Sanctions as the Court Deems Appropriate [DE 34], filed by Defendant
United Water on March 21, 2011.
PROCEDURAL BACKGROUND
Plaintiff Anthrice D. Bray filed a pro se Employment Discrimination Complaint with this
Court on April 14, 2010. Defendant United Water filed an Answer on June 2, 2010. On June 25,
2010, counsel entered an appearance on behalf of Mr. Bray.
The Court held a Rule 16(b) preliminary pretrial conference on August 5, 2010. At the
conference, the Court ordered that initial disclosures be exchanged by September 1, 2010.
On November 15, 2010, United Water filed a Motion to Dismiss, asking the Court to dismiss
the case pursuant to 28 U.S.C. § 1915(e)(2)(A) based on misrepresentations Mr. Bray made on his
in forma pauperis application. On December 16, 2010, the Court denied the motion but nevertheless
found “that the undisputed evidence before the Court, consisting of Plaintiff’s deposition testimony
and his bank statements, demonstrates that Plaintiff made false statements on his application to

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The Complaint incorrectly names Defendant as “United Water.” Defendant’s correct name is United Water
Environmental Services Inc.

proceed in forma pauperis.” Dec. 16, 2010 Order, p. 3. Later that same day, Mr. Bray filed an
untimely response brief in opposition to the Motion to Dismiss.2 The Court subsequently denied a
Motion to Reconsider the ruling by United Water on January 28, 2011.
On January 31, 2011, the Court granted a Motion to Compel filed by United Water and
ordered Mr. Bray to belatedly produce to United Water various identified discovery and initial
disclosures on or before February 11, 2011. The Court further granted an award of fees, ordering
United Water to file with the Court a statement of attorney fees incurred in bringing the motion. On
March 8, 2011, the Court issued an order awarding fees in the amount of $1679.00.
On March 21, 2011, United Water filed a Motion for Summary Judgment, a memorandum
in support, and supporting documentation. A response brief, if any, was due on or before April 21,
2011, pursuant to Local Rule 56.1 and Federal Rule of Civil Procedure 6. Mr. Bray has not filed
a response in opposition to summary judgment.
On March 21, 2011, United Water filed a Motion for Sanctions based on Mr. Bray’s alleged
failure to provide complete discovery responses as ordered by the Court on January 31, 2011. Mr.
Bray filed a response on April 5, 2011, and United Water filed a reply on April 11, 2011.
The parties orally agreed on the record to have this case assigned to a United States
Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this
case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
MOTION FOR SANCTIONS
As noted above, on January 31, 2011, the Court ordered Mr. Bray to “produce to Defendant
the discovery and initial disclosures identified in this Order on or before February 11, 2011,” which
consisted of (a) Mr. Bray’s Federal Rule of Civil Procedure 26(a)(1) disclosures (which the Court

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Northern District of Indiana Local Rule 7.1 provides a briefing period of 14 days for a response brief.

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had already previously ordered on August 5, 2010, be produced by September 1, 2010) and (b) a
variety of documents responsive to Defendant’s First Set of Document Requests that Mr. Bray stated
during his deposition that he had in his possession, including but not limited to “two alleged emails
to a Human Resources Manager complaining about alleged harassment; records showing his posttermination unemployment benefits; records regarding a business that he started post-termination;
records reflecting post-termination earnings from a new job; and his 2009 tax return and W-2
forms.” Jan. 31, 2011 Order, p. 2. Other than a copy of his 2009 tax return with a post-it note
blocking out the center of the first page, Mr. Bray has not produced any of the other documents he
was ordered to produce by February 11, 2011. He also has still not provided his voluntary discovery
disclosures under Rule 26(a)(1).
A federal court has the inherent authority “‘to fashion an appropriate sanction for conduct
which abuses the judicial process,’ including the ‘particularly severe sanction’ of dismissal.” Abner
v. Kendall v. Scott Mem’l Hosp., 634 F.3d 962, (7th Cir. 2011) (quoting Chambers v. NASCO, Inc.,
501 U.S. 32, 44-45 (1991)). Federal Rule of Civil Procedure 37(b)(2)(A) provides for the following
sanctions based on a failure to comply with a court 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;
...
(v) dismissing the action or proceeding in whole or in part;
. . . ; or
(vii) treating as contempt of court the failure to obey any order except an
order to submit to a physical or mental examination.

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Fed. R. Civ. P. 37(b)(2)(A). “Instead of or in addition to the orders above, the court must order the
disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including
attorney’s fees, caused by the failure, unless the failure was substantially justified or other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
As a sanction for discovery abuse, a district court may dismiss a case upon finding that the
plaintiff, through his actions, displayed willfulness, bad faith, or fault. Collins v. Illinois, 554 F.3d
693, 696 (7th Cir. 2009) (citing In re Thomas Consol. Indus., Inc., 456 F.3d 719, 724 (7th Cir.
2006); Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir. 2003)). A court that dismisses a case as a
sanction under Rule 37 must consider and explain why any of the lesser available sanctions would
be ineffective. Maynard, 332 F.3d at 468.
United Water asks the Court to find that Mr. Bray’s actions display wilfulness, bad faith, or
fault and to impose the sanction of dismissal pursuant to Rule 37(b)(2)(A)(v). United Water argues
that Mr. Bray has consistently shown willful disregard for the integrity of the Court system and his
obligations under the applicable rules and the Court’s orders. United Water notes that Mr. Bray
made extensive misrepresentations on his application to proceed in forma pauperis, ignored the
Court’s August 23, 2010 Order that he make his Rule 26(a)(1) disclosures by September 1, 2010,
ignored his obligation under Federal Rule of Civil Procedure 34 to respond to United Water’s
request for production of documents, and failed to comply with the Court’s January 31, 2011 Order
requiring the production of the outstanding discovery. In the alternative, United Water asks for
lesser sanctions under Rule 37(b)(2)(A)(i) and (ii). Finally, United Water asks for reimbursement
for the costs incurred in bringing this motion pursuant to Rule 37(b)(2)(C).
The Court ordered Mr. Bray to file a response to the motion by April 5, 2011, which he did.
Although Mr. Bray references attachments to his response brief, he did not file the attachments with
the Court. First, Mr. Bray generally references to the Court’s granting of his request to extend the
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February 11, 2011 discovery deadline to March 18, 2011, a request that he made orally on February
10, 2011, at a telephonic status conference. As of that February 10, 2011 conference, Mr. Bray had
not initiated any discovery. In the response brief, counsel then notes that Mr. Bray did, in fact, turn
over his 2009 tax return by February 11, 2011, but does not explain the presence of the post-it note
over portions of the first page. Counsel then represents that Mr. Bray has “provided all discovery
that he had within his possession in accordance with the Court’s January 31, 2011 Order.” Pl. Resp.,
p. 2. Mr. Bray’s response brief then addresses the standard for dismissal under Rule 12(b)(6),
which is not at issue on this motion. Finally, counsel makes an unverified assertion that Mr. Bray’s
“representations made in a depositions[sic] on September 21, 2010 are true with respects[sic] to the
facts and information known to him at the time of the depositions[sic] and Defendants continues[sic]
to make veil[sic] attempts to get a quick dismissal without trying the case on the merits.” Id.
The Court finds that Mr. Bray has twice, without explanation, failed to comply with a Court
order to make Rule 26(a)(1) initial disclosures–first, the Court’s Order of August 5, 2011, pursuant
to Federal Rule of Civil Procedure 26(g) setting the deadline for initial disclosures for September
1, 2011, and second, the Court’s Order of January 31, 2011, pursuant to Federal Rule of Civil
Procedure 37(a) ordering the service of initial disclosures by February 11, 2011. The Court further
finds that Mr. Bray’s production of a single document–his 2009 tax return with a post-it note
blocking a portion of the first page–does not constitute compliance with the remainder of the Court’s
January 31, 2011 Order, which required him to produce various documents, including but not limited
to the specific documents he testified at his September 2010 deposition to personally possessing.
Mr. Bray has offered no explanation at all, other than his attorney’s vague, unsworn statements, for
his failure to produce documents responsive to United Water’s requests for production of documents
as ordered by the Court.

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Under the totality of the circumstances in this case and given Mr. Bray’s repeated disregard
for the Court’s orders and disrespect for the legal process, the Court finds that Mr. Bray has acted
wilfully and in bad faith such that the sanction of dismissal with prejudice pursuant to Rule
37(b)(2)(A)(v) is warranted. A lesser sanction provided under Rule 37 is insufficient in this case
because Mr. Bray’s failure to participate in discovery has severely prejudiced United Water’s ability
to prepare a defense in this matter because it has not been provided with basic discovery responses.
The Court further grants the request for attorney fees and costs pursuant to Rule 37(b)(2)(C),
finding that the award of fees and costs against Mr. Bray and his counsel is warranted by Mr. Bray’s
failure to comply with the Court’s January 31, 2011 Order and that the failure was not substantially
justified nor are there any other circumstances that make an award of expenses unjust.
MOTION FOR SUMMARY JUDGMENT
Finding that this case shall be dismissed pursuant to Federal Rule of Civil Procedure
37(b)(2)(A), the Court denies as moot the Motion for Summary Judgment.
CONCLUSION
Based on the foregoing, the Court hereby:
(1) GRANTS Defendant’s Motion to Dismiss Pursuant to FRCP 37(b)(2)(A) for Willful
Noncompliance with the Court’s January 31, 2011 Order or, in the Alternative, for Such Lesser
Sanctions as the Court Deems Appropriate [DE 34] and ORDERS that this case is DISMISSED
with prejudice.
Pursuant to Rule 37(b)(2)C), the Court further ORDERS that Mr. Bray and his attorney shall
pay United Water its reasonable attorney fees and costs incurred in bringing the motion, including
the time spent in preparing the reply brief.

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The Court ORDERS United Water to FILE with the Court on or before May 24, 2011, an
itemized statement of attorney fees and costs incurred in bringing this motion, including the cost
incurred in filing the reply brief, with supporting documentation.
(2) DENIES as moot Defendant’s Motion for Summary Judgment [DE 31].
SO ORDERED this 10th day of May, 2011.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES MAGISTRATE JUDGE
cc:

All counsel of record

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