Cunningham v. Foresters Financial Services, Inc. et al

Filing 106

OPINION AND ORDER denying 103 Motion to Compel, Motion for Sanctions and Motion for an Order of Contempt. Signed by Magistrate Judge Joshua P Kolar on 2/21/19. (Copy mailed to pro se party). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CRAIG CUNNINGHAM,
Plaintiff,
v.
FORESTERS FINANCIAL
SERVICES, INC., et al.,
Defendants.

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CAUSE NO. 2:17-CV-77-RL-JPK

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel, Motion for Sanctions, and
Motion for an Order of Contempt [DE 103], filed by Plaintiff Craig Cunningham, pro se, on
February 19, 2019.
In the instant motion, Plaintiff asks the Court to compel non-party Braintree, Inc. to comply
with a subpoena that Plaintiff purportedly served on Braintree on December 26, 2017. Plaintiff
also asks the Court to hold Braintree, Inc. in contempt and to sanction Braintree, Inc. in the amount
of $10,000.00.
First, Plaintiff filed an identical motion on January 10, 2018. See (ECF 67). On January 31,
2018, the Court denied the motion without prejudice on the basis that Plaintiff did not provide the
proof of service of the subpoena on Braintree, Inc. that is required by Federal Rule of Civil
Procedure 45(g). See (ECF 69). The Court had reviewed the docket and was unable to locate a
return of service for a subpoena issued to Braintree, Inc., either after December 26, 2017, or
anywhere else on the docket. Id. Thus, the Court found that Plaintiff had not proved that a subpoena
was served on Braintree, Inc. Id. The instant February 19, 2019 motion is an exact duplicate of the
January 10, 2018 motion. Plaintiff has not cured the defect and still has not proved that a subpoena

was served on Braintree, Inc. Therefore, the Court denies the instant motion for failure to comply
with Federal Rule of Civil Procedure 45.
Second, the motion is untimely, and the Court denies the motion on this basis as well. The
discovery deadline in this case was December 31, 2018. The instant “Motion to Compel, Motion
for Sanctions, and Motion for an Order of Contempt,” which addresses discovery issues, was not
filed until February 19, 2019. Plaintiff filed the original motion over a year ago, in January 2018.
Also, Defendant Foresters Financial Services, Inc. filed a Motion for Summary Judgment on
August 1, 2018, and Defendant Gil Swets filed a Motion for Summary Judgment on November
19, 2018. The Seventh Circuit Court of Appeals has affirmed the denial of a motion to compel that
was filed after the close of discovery and after summary judgment motions had been filed. See
Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001); see also Rossetto v. Pabst
Brewing Co., 217 F.3d 539, 542 (7th Cir. 2000) (upholding the denial of a motion to compel as
untimely on the basis that the motion was filed two months after the close of discovery with the
movants giving “no excuse for their tardiness”). Plaintiff has offered no explanation for the late
filing of this motion.
Accordingly, the Court hereby DENIES Plaintiff’s Motion to Compel, Motion for
Sanctions, and Motion for an Order of Contempt [DE 103].
SO ORDERED this 21st day of February, 2019.
s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT
cc:

Pro se Plaintiff