Grimes v. Gary Community School Corporation et al

Filing 82

OPINION AND ORDER: Court ADOPTS the Recommendation that default be entered against Defendant City of Gary, thereby GRANTING IN PART the motion for sanctions. Court ADOPTS IN PART 60 Report and Recommendation, GRANTS IN PART 45 Verified Motio n for Sanctions. Court GRANTS 80 Motion to Quash. Parties to complete Grimes's deposition within 30 days of the entry of this Order. Due to the fact that discovery closed months ago, no further discovery other than Grimes's deposition will be permitted. In person status hearing SET for 7/23/2015 10:00 AM in US District Court - Hammond before Chief Judge Philip P Simon. Signed by Chief Judge Philip P Simon on 6/16/2015. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DARA M. GRIMES,
Plaintiff,
v.
GARY COMMUNITY SCHOOL
CORPORATION,
CITY OF GARY, D. GOSHAY AND
A. BRADSHAW,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

2:13-cv-00036-PPS-APR

OPINION AND ORDER
Plaintiff Dara Grimes is a social worker, and back in 2011 one of her clients was a
student who had a disability. The student was facing expulsion from school, and
Grimes happened to be present when the news of his expulsion was being delivered.
She attempted to intervene on the student’s behalf, and one thing led to another and she
was arrested. The two officers who arrested Grimes were allegedly employed at the
time of Grimes’s arrest by both the Gary Schools and the City of Gary. In this § 1983
case brought against the arresting officers, Gary Schools, and the City of Gary, Grimes
claims that she was wrongfully arrested in violation of her constitutional rights.
Attorneys for the Gary Schools have participated in the case on behalf of the
officers and the Gary Schools. But regrettably, the City of Gary’s participation has been
much more tenuous. Indeed, they have repeatedly ignored discovery requests and court
orders and have otherwise continually failed to participate in this case. Magistrate

Judge Rodovich decided that enough was enough and recommended to me that the
City of Gary be defaulted based on a motion for sanctions filed by Grimes. (DE 45.) For
the reasons outlined below, I will adopt in part Magistrate Judge Rodovich’s Report and
Recommendations (DE 60) and will direct the Clerk of Court to enter a default against
Gary. At a hearing on April 7, 2015, I declined to adopt the Recommendation of
sanctions against Gary’s attorney Gregory Thomas personally. (DE 75.)
Judge Rodovich’s Recommendations summarize the relevant facts thoroughly. In
short, Grimes made discovery requests of Gary in February 2014. Gary didn’t provide
the discovery so Grimes moved to compel responses in April 2014, and the court
granted that motion to compel in July 2014. The Order granting the motion to compel
(DE 42) ordered a response to Grimes’s request for an affidavit and employee records
for Defendant Goshay (one of the two officers involved in Grimes’s arrest). Gary didn’t
comply with the order granting the motion to compel, and Grimes moved for sanctions
in August 2014. (DE 45.) The lawyer handling the case for Gary up to this point moved
to withdraw and that was granted (DE 47), leaving the City unrepresented. Several
months went by before another lawyer, Mr. Thomas, appeared on behalf of the City. So
the motion for sanctions was finally responded to by the City in December 2014. In that
response, the City argued that its lackadaisical approach to discovery resulted from its
rotating attorneys and a “communication breakdown,” and saying that Gary would
provide “prompt and complete discovery responses” going forward. (DE 54 at 7.) Judge
Rodovich found Gary’s excuses wanting and recommended in January 2015 that default
2

be entered against Gary and that its attorney be sanctioned personally. (DE 60,
recommending that DE 45 be granted.)
I scheduled a hearing to talk to the parties and figure out what was actually
going on, and due to various scheduling conflicts that hearing was continued multiple
times. At the April 7, 2015, hearing I ordered Gary to provide the discovery that was the
subject of the motion to compel by April 17, 2015. On April 28, 2015, Grimes filed a
reply on her motion for sanctions, and in the same document (titled in a second header
on the first page) filed a “Motion to Compel Production Pursuant to Court Order
Entered April 7 2015.” (DE 79.) Grimes’s filing states that Gary sent a response to
requests for production, but had still not responded to the request for personnel records
that was the subject of the order on the motion to compel. (DE 79 at 4.) Gary hasn’t even
bother to respond to the new motion to compel, which sought to compel a discovery
response that had already been specifically ordered twice by the court, and that was the
subject of the motion for sanctions.
Judge Rodovich’s Report and Recommendations explains at length the basis for
court-ordered sanctions in general, and for the sanction of default against Gary in this
case in particular. I’ll briefly outline that reasoning. The Court may sanction a party for
disobeying a discovery order, and sanctions may include “rendering a default judgment
against the disobedient party.” Fed. R. Civ. P. 37(b)(2)(A)(vi); see also, Chambers v.
NASCO, Inc., 501 U.S. 32, 44-45 (1991); Barnhill v. United States, 11 F.3d 1360, 1367-68 (7th
Cir. 1993). I fully recognize that entering a default as a sanction is drastic, and isn’t done
3

lightly. It is reserved for extreme situations “when there is a clear record of delay or
contumacious conduct, or when other less drastic sanctions have proved unavailable.”
Rice v. City of Chicago, 333 F.3d 780, 784 (7th Cir. 2003); see also, Domanus v. Lewicki, 742
F.3d 290, 301 (7th Cir. 2014). The Court must carefully analyze the situation to apply
sanctions proportionate to the misconduct, and should consider “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” party’s position. Rice, 333 F.3d at 784 (citation, quotation marks,
brackets omitted).
As the background I’ve described and Judge Rodovich’s detailed timeline show,
Gary has been granted one chance after another, has promised the Court that it would
comply, then has utterly failed to do what it promised and what it was ordered to do.
The discovery demands have not been onerous or complicated, and the deadlines have
not been tight. This is a very straightforward case involving the events of a single
afternoon between two officers and one plaintiff. Yet because Gary has refused to
propound or respond to discovery the case has dragged on for two-and-a-half years. In
all that time, fact development seems to have gotten almost nowhere, and precisely
nowhere as far as Gary’s participation goes. The bottom line is this: Gary has failed to
comply with nearly every court order in this case. The Court has had to spend time
reviewing briefing on motions to compel, holding hearings on discovery issues,
considering and granting discovery extensions, and researching and drafting special
4

Orders aimed at Gary’s recalcitrance. Plaintiff Grimes filed her case and deserves to get
her day in court in a timely fashion, so she is prejudiced. I don’t think anybody really
has any idea of the merits of Gary’s position because Gary won’t participate in the case
or gather or share any information about its position, so that factor is moot.
Although the amount of damages remains to be determined, I find that entry of
default against Gary is proper. The default here is not the result of a mere technicality,
but the result of a repeated, long-term refusal to participate in the case in a meaningful
way that at this point must be described as willful. A defendant cannot be allowed to
completely ignore a lawsuit against it and, for practical purposes, that is what Gary has
done and continues to do to this day. Gary’s attorneys have participated in court
hearings and opposed sanctions (notably when the sanctions recommendation included
the possibility of sanctions against the attorney personally). Gary finally provided some
discovery in April 2015, long after discovery had closed even after extension. But Gary
has still not responded to a discovery request made about 16 months ago that has been
the subject of various motions, orders and hearings. The discovery Gary finally
provided was incomplete and did not address the discovery that I specifically ordered
Gary to produce within 10 days of the in-person hearing. Precisely why Gary didn’t
comply with my order is unknown; as mentioned, Gary did not bother to respond to a
new motion to compel the production of that material.
“While the entry of a default judgment should be used sparingly, [the Seventh
Circuit sees] no need to impose a requirement that prevents a district court from
5

imposing that sanction if, under the circumstances, it is warranted. The Federal Rules of
Civil Procedure, as well as local rules of court, give ample notice to litigants of how to
properly conduct themselves. A district court is not required to fire a warning shot
. . . .” United States v. Di Mucci, 879 F.2d 1488, 1493 (7th Cir. 1989) (quoting Hal
Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1138-39 (7th Cir. 1987)). “A trial
court is entitled to say, under proper circumstances, that enough is enough.” Pyramid
Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1062 (7th Cir.1989) (internal citation
omitted). Gary has had the benefit of warning shots (including a detailed Report and
Recommendation filed five months ago recommending default) and to this day it has
failed to comply with court orders dating back as far as 10 months ago.
For the foregoing reasons I therefore ADOPT THE RECOMMENDATION
THAT DEFAULT BE ENTERED AGAINST DEFENDANT CITY OF GARY, thereby
granting in part the motion for sanctions. (Adopting in part DE 60, granting in part
DE 45.)
One issue remains pending. As I stated at the April 7 hearing, I also allowed a
limited reopening of discovery so that I could then order the parties to arrange to
depose Plaintiff Grimes before the settlement conference that I directed Judge Rodovich
to hold. Gary Schools noticed Grimes’s deposition, and the subpoena also requested
extensive documentation. (DE 80-1.) Grimes opposed the document requests, so on May
5, 2015, filed a motion to quash them. (DE 80.) No response was ever filed by any
defendant, and it is unclear from the record whether the deposition has been taken, or
6

whether it was taken before the settlement conference as I ordered. In any event, no
opposition was filed by the City of Gary or the Gary Schools to the motion to quash,
which is yet another example of Gary’s utter lack of interest in meaningfully defending
against this lawsuit. So the motion to quash will be GRANTED. (DE 80.)
If it has not already taken place, the parties are ORDERED to complete Grimes’s
deposition within 30 days of the entry of this Order. Due to the fact that discovery
closed months ago, no further discovery other than Grimes’s deposition will be
permitted. This matter is set for an in person status hearing on July 23, 2015, at 10:00
a.m. at which the parties should be prepared to discuss possible dispositive motions
and the schedule for trial.
SO ORDERED.
ENTERED: June 16, 2015
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

7