Grimes v. Gary Community School Corporation et al

Filing 90

OPINION AND ORDER: GRANTING 85 MOTION for Reconsideration by Defendant Gary City of. The grant of default is VACATED. All of the previously-set deadlines remain unchanged, and apply to Gary as they apply to the other defendants. DE 84 is STRICKEN from the record as redundant and filed in error. Signed by Chief Judge Philip P Simon on 8/19/2015. (lhc)

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.

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2:13-cv-00036-PPS-APR

OPINION AND ORDER
The City of Gary seeks reconsideration of my earlier ruling entering default
against it. This case has been plagued by inattentive lawyering on behalf of the
defendants. Because this is a motion to reconsider, and there is a long chain of docket
filings that recount the minutiae of this case, I won’t do it again here. The City of Gary
neglected this case, passing it from one lawyer to another and failing to provide
discovery that was requested by the plaintiff then ordered by the Court. The failure
doesn’t appear to have been willful, but neglectful. Eventually I granted default against
Gary because it appeared that Gary had refused to comply with a discovery order
several times, and had no intention of complying. Gary has now clarified that it did
eventually comply, and that it had done so before I granted default – although Gary

didn’t bother to notify me of that fact – and so it wants me to reconsider the grant of default.
Very briefly, here’s the factual background: 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 was present at the school when
the news of his expulsion was being delivered. She attempted to intervene on the
student’s behalf. 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.
None of the defendants did much in the way of discovery in this case. Gary
Schools participated a bit; Gary not at all. Judge Rodovich’s Recommendations
thoroughly summarize the relevant facts that led to Gary’s default. 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
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months went by before another lawyer 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
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. Gary’s counsel prepared some
discovery materials and arranged their delivery to Grimes around April 16. (DE 85 at 2.)
Those materials did not include the personnel records that were the subject of the
original motion to compel and all that followed — that request came before Gary’s
current counsel was on the case. On April 20 Gary filed a notice with the court stating
that it had complied with the discovery order. (DE 85 at 3.) The fundamental problem
with this is that although Gary did provide discovery, it didn’t actually comply with the
order because Gary’s attorney didn’t understand what the order required. On April 28,
2015, Grimes filed a reply on her motion for sanctions. In the same document (titled in a
second header on the first page) Grimes brought a “Motion to Compel Production
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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’s attorney states in the motion for reconsideration that this was the
first he’d heard of personnel records. (DE 85.) Gary then got the personnel records and
provided them to Grimes at Grimes’s deposition on May 9, 2015. (DE 85 at 4.) Gary
didn’t file a corresponding notice, nor did it respond to the new motion to compel
(although this is a more understandable mistake because Grimes stuck this new motion
to compel in a reply on her motion for sanctions). So, not knowing that Gary had finally
provided the long-awaited personnel records nearly a month before, I adopted Magistrate
Judge Rodovich’s report and recommendation and entered default against Gary on the
basis of its failure to provide the personnel records. (DE 82.) Final judgment against
Gary has not been entered.
Gary moved for reconsideration of the entry of default. (DE 85.) (Gary filed its
motion on both July 1 and July 2: DE 84 and DE 85 appear to be the same document,
with the same title and attachments, but DE 84 was filed a day earlier and has a
hyperlink to the order of which the motion seeks reconsideration. I am using the laterfiled version of the motion to increase the likelihood that it is the version the attorney
filer intended. DE 84 is therefore STRICKEN from the record as redundant and filed in
error.)

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Gary’s motion is styled as one which seeks “reconsideration” yet it cites to
Federal Rule of Civil Procedure 60(b)(5) as the vehicle by which relief should be
granted. But Rule 60(b)(5) governs relief from judgment. What Gary really wants me to
do is reconsider my earlier ruling which entered default against it. Such a motion is
more properly brought under Federal Rule of Civil Procedure 59(e). (Gary timely filed
its motion for reconsideration within the 28 days required by Rule 59(e).) So I will
construe Gary’s motion as one under Rule 59(e). In all events, Grimes opposes
reconsideration. (DE 86.) In addition to addressing the issue of default and the
discovery issue that led to it, Grimes attempts to raise additional issues with Gary’s
discovery responses (unrelated to the motions and orders addressing the failure to
respond regarding the personnel file). Default was based on a linear series of events
stemming from a particular discovery dispute, and this response is not the proper place
to raise additional issues.
As I have previously noted, entering a default as a sanction is drastic, and isn’t
done 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. Rice, 333 F.3d at 784. The Seventh
Circuit certainly prefers disposition on the merits to default. See, e.g., Cracco v. Vitran
Express, Inc., 559 F.3d 625, 631 (7th Cir. 2009). I do, as well.
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Here, although it doesn’t excuse Gary’s prior insouciance, I was working with
incomplete and inaccurate information when I granted default against Gary. Gary
should have informed me that it had finally complied once its current attorney
understood what was required, but the much more important fact is that it did comply.
I granted default based on the understanding that Gary had failed to produce the
personnel records. But as it turns out, this wasn’t the case. The personnel records had
been produced. This was a manifest error of fact which provides a basis to reconsider
under Rule 59(e). Vesely v. Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014).
To be clear: I am not and have no intention of reopening discovery. Gary made
its discovery-devoid bed and will have to lie in it. Dates have been set for summary
judgment briefing, the final pretrial conference, and trial, and this order has no impact
on those, nor does it signal a willingness to change those. It merely means that Gary
may seek a merits determination on summary judgment and at trial, alongside Grimes,
Gary Schools, and the individual defendants.
There is one more issue that I need to address. This is an issue that I previously
raised with Gary’s current attorney, Gregory Thomas. At a hearing I asked him if he
represented the two individual police officer defendants in addition to representing the
City of Gary. He looked very confused and said that he unequivocally did not. The
docket agrees with that statement – neither he nor any City of Gary attorney has ever
filed an appearance on behalf of either man (they are represented by the same attorney
as Gary Schools). I asked Attorney Thomas why, if he doesn’t represent them, the very
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first sentence of his filings reads as follows: “Comes now Defendants, City of Gary, D.
Goshay and A. Bradshaw by counsel . . . .” Thomas explained at the hearing that he had
not written that text, and had borrowed it from filings drafted by previous Gary
attorneys assigned to the case. He did not explain why he hadn’t read the text he was
filing with the district court, or, if he had read it, why he didn’t edit it to accurately
reflect representation in this case. I made the reasonable request that he review and edit
his filings going forward, and that he not purport to represent parties he doesn’t
represent.
With this back and forth in court as a backdrop, I was stunned to see that in the
very first sentence of his current motion, Mr. Thomas again stated that he represents
both the City of Gary and the individual officers. Here’s what the pleading says:
“Comes [sic] now Defendants, City of Gary, D. Goshay and A. Bradshaw by counsel,
pursuant to FRCP 60(B)(5) and (6) and FRCP 55(C) and files [sic] its [sic] Motion to
Reconsider its [sic] Order and in support of said Motion Defendants’ [sic] state as
follows: . . . .” (DE 85 at 1, ¶ 1.) For someone seeking to reassure the Court that this case
will run more smoothly going forward, this kind of sloppiness (in the first sentence,
with previous warning from the Court) is not acceptable.
* * *
The City of Gary’s motion for reconsideration of the imposition of the sanction of
default against Gary is GRANTED. The grant of default is VACATED. All of the

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previously-set deadlines remain unchanged, and apply to Gary as they apply to the
other defendants.
DE 84 is STRICKEN from the record as redundant and filed in error.
SO ORDERED.
ENTERED: August 19, 2015
/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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