Cox v. Arcellor Mittal et al
Filing
45
OPINION AND ORDER denying 39 Motion to Reopen Discovery and denying defendant's 40 Motion to Dismiss and, instead of dismissing the case, ORDERS Mr Cox shall make himself available for his deposition at such time and date as the attorneys f ind convenient, but in no event more than fourteen days from the date of this order. Failure to comply will result in dismissal of the case under Federal Rules of Civil Procedure 41(b) and 37(b)(2). Also within fourteen days of the date of this ord er, the defendants shall file with the court a statement of expenses incurred (including attorney fees for attendance) with respect to the attempted depositions on May 22, July 11, and August 22, 2014. The plaintiff shall have fourteen days from the date of that filing to show cause why the court should not order Mr. Cox to reimburse the defendants for those expenses pursuant to Federal Rule of Civil Procedure 37(d)(1)(A)(i). Signed by Judge Robert L Miller, Jr on 11/19/2014. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
WILLIAM COX,
)
)
Plaintiff
)
)
vs.
)
)
ARCELLOR MITTAL, GERALD
)
COOK, JOSEPH MEDELLIN,
)
and MARY LYNN GARGAS-SOUTH, )
)
Defendants )
CAUSE NO. 2:13-CV-81 RLM
OPINION and ORDER
With this case more than twenty months old, plaintiff William Cox has
yet to appear for his deposition. The deposition was first scheduled — finally
scheduled, according to the exasperation evident in defense counsel’s letter
confirming agreement on the date — on May 22 of this year, nine days short
of the discovery deadline. Mr. Cox’s deposition was to kick off discovery
because the parties had agreed that the depositions of the individual
defendants wouldn’t be held until after Mr. Cox’s deposition. Days before
the scheduled May 22 deposition, Mr. Cox announced that after two years
of unemployment since leaving defendant Arcellor Mittal, he had gotten a
job between Ann Arbor and Detroit, Michigan, and had to leave the
northwest Indiana area immediately. The May 22 deposition was cancelled.
Magistrate Judge Cherry extended the discovery deadline to August
29, but only for the depositions of Mr. Cox and the individual defendants.
Rescheduling Mr. Cox’s deposition proved more difficult than one ordinarily
would expect because his job schedule in Michigan is such that he would
only agree to sit for his deposition on Fridays (only twelve Fridays were
available between the June 11 extension of discovery and the new August
29 deadline for completing discovery). The deposition was reset for July 11.
At 1:00 a.m. that day, Mr. Cox notified his attorney that he had suffered a
flat tire on his drive from southeastern Michigan to northwest Indiana and
wouldn’t be able to make it. Mr. Cox later sent along paperwork confirming
the purchase of a new tire. The deposition was cancelled with minimal
notice to the court reporter.
The attorneys rescheduled the deposition for August 22, one week
ahead of the adjusted discovery deadline. This time, the attorneys all
appeared for the deposition with the court reporter. None could account for
Mr. Cox’s absence. That evening, Mr. Cox called his attorney and told her
that he was severely ill with respiratory problems and had taken some
medication that left him unable to call. A few days later, he produced a
doctor’s note reporting that Mr. Cox had told a doctor the same thing.
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The discovery deadline passed quietly as Mr. Cox and his attorney
decided whether a voluntary dismissal was in order. They decided to
proceed and, on October 6, filed a motion to reopen discovery to allow the
parties’ depositions to be taken. The defendants objected to the general
reopening of discovery and moved to dismiss the case for the plaintiff’s
failure to cooperate in discovery. The court heard argument on the motion
on November 18.
Courts can’t operate without setting and enforcing deadlines. Gross
v. Cicero, Illinois, 528 F.3d 498, 499-500 (7th Cir. 2008). Rule 16(b)
provides that a discovery deadline can’t be modified without a showing of
good cause, but a higher standard applies in this case because Mr. Cox
didn’t file this motion until after discovery closed: a party seeking to re-open
discovery must show excusable neglect for failiting to complete discovery
within the time allotted. Brosted v. Unum Life Ins. Co. of America, 421 F.3d
459, 464 (7th Cir. 2005). Mr. Cox hasn’t made such a showing. At best, he
has shown excusable neglect for failing to appear on July 11 and August 22.
But Magistrate Judge Cherry provided 87 days for the parties to take the
depositions of Mr. Cox and the other parties; that came after the expiration
of the 228 days afforded in the original scheduling order. Mr. Cox hasn’t
made the showing necessary for the court to re-open discovery.
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Neither is dismissal proper. Mr. Cox has frustrated discovery, but he
hasn’t refused to participate; indeed, his motion to re-open discovery seems
to have been designed primarily to allow the defendants to take his
deposition. Although he appears to have impeded his deposition, Mr. Cox
hasn’t refused to attend or to answer questions. “Time limits set by judges,
unlike those in statutes, often can be extended . . . . When judges can
decide whether to be strict or lenient, it is important to match the sanction
to the offense.” Gross v. Cicero, 528 F.3d at 500. “The sanction of dismissal
must be one that a reasonable jurist, apprised of all the circumstances,
would have chosen as proportionate to the infraction.” Maynard v. Nygren,
372 F.3d 890, 892-893 (7th Cir. 2004). We haven’t reached that point.
Based on the foregoing, the court DENIES the plaintiff’s motion to
reopen discovery [docket # 39], DENIES the defendants’ motion to dismiss
[docket # 40], and, instead of dismissing the case, ORDERS as follows:
1. Mr. Cox shall make himself available for his deposition
at such time and date as the attorneys find convenient, but in
no event more than fourteen days from the date of this order.
Failure to comply will result in dismissal of the case under Federal
Rules of Civil Procedure 41(b) and 37(b)(2).
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2. Also within fourteen days of the date of this order, the
defendants shall file with the court a statement of expenses
incurred (including attorney fees for attendance) with respect to
the attempted depositions on May 22, July 11, and August 22,
2014.
3. The plaintiff shall have fourteen days from the date of
that filing to show cause why the court should not order Mr. Cox
to reimburse the defendants for those expenses pursuant to
Federal Rule of Civil Procedure 37(d)(1)(A)(i).
SO ORDERED.
ENTERED:
November 19, 2014
/s/ Robert L. Miller, Jr.
Robert L. Miller, Jr., Judge
United States District Court
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