Dean v. Allied Waste Services
OPINION AND ORDER DENYING 53 Motion to Dismiss and Ordering Plaintiff to produce the supplemental records related to his medical care within fourteen days of this Order. Signed by Magistrate Judge Andrew P Rodovich on 9/12/13. (mlc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SHAYNE L. DEAN,
ALLIED WASTE SERVICES, agent of
Allied Waste Services of
) CIVIL NO. 4:10-cv-43
OPINION AND ORDER
This matter is before the court on the Motion to Dismiss Pursuant to Federal Rule of
Civil Procedure 41(b) [DE 53] filed by the defendant, Allied Waste Services, on June 7, 2013.
For the following reasons, the motion is DENIED.
The plaintiff, Shayne Dean, filed his complaint on May 13, 2010, alleging that he
sustained injuries from slipping and falling on diesel fuel on a walking surface while a business
invitee on the defendant’s property. The defendant served discovery requests on Dean on
December 20, 2010. At a subsequent deposition, the defendant learned that Dean had failed to
disclose several instances of past medical treatment as required under Federal Rule of Procedure
26(e). Because of Dean’s omissions, the defendant had to conduct a second deposition and
sought to recover the fees and costs associated with the second deposition as a discovery
sanction. The court granted the defendant’s motion and ordered Dean to pay the costs and fees
associated with the second deposition on May 16, 2012. Dean has yet to comply and pay the
Following this ruling, Dean’s counsel was disbarred from practicing before this court and
defense counsel was unable to reach Dean. On May 21, 2012, the defendant filed a motion to
dismiss for failure to prosecute, arguing that Dean failed to investigate his claim adequately and
did not supplement his discovery responses. On June 1, 2012, Dean retained new counsel. The
court held a status conference on June 15, 2012, and set new deadlines. Because Dean retained
new counsel, the case could progress, and the court found that dismissal was unwarranted.
Since this time, the defendant represents that Dean has not provided the supplemental
discovery responses related to his omissions about his medical care and has done nothing to
prosecute his case despite having his current counsel for eleven months. The defendant again
moves for dismissal for failure to prosecute.
Federal Rule of Civil Procedure 41(b) provides that “[i]f a plaintiff fails to prosecute or
to comply with these rules or a court order, a defendant may move to dismiss the action or any
claim against it.” Dismissal is the most severe sanction and generally is applied only when a
party has displayed exceptional misconduct or when less drastic sanctions have proven
unavailing. Sun v. Board of Trustees, 473 F.3d 799, 811 (7th Cir. 2007) (explaining that the
Seventh Circuit has a well established policy of favoring trial on the merits over default
judgments); Maynard v. Nygren, 332 F.3d 462, 467-468 (7th Cir. 2003); Danis v. USN
Communications, Inc., 2000 WL 1694325, *33-34 (N.D. Ill. Oct. 23, 2000) (“Because a default
judgment deprives a party of a hearing on the merits, the harsh nature of this sanction should
usually be employed only in extreme situations where there is evidence of willfulness, bad faith
or fault by the noncomplying party”) (citing Societe Internationale v. Rogers, 357 U.S. 197,
209, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958) (explaining that a party should be sanctioned with
dismissal only in extreme situations where there is evidence of willfulness, bad faith or fault by
the noncomplying party)).
At this point, it is not obvious that Dean’s counsel is failing to prosecute the case.
Discovery remains ongoing, he has been present for all status conferences, he has communicated
with defense counsel, and he has complied with all court orders since he entered his appearance.
Dean’s counsel filed a response brief, explaining that he was unable to get Dean’s entire file
from Dean’s former counsel and still is in the process of obtaining Dean’s current medical
records. Although it is not entirely clear why he has been unable to procure the records in eleven
months time, the defendant has not filed a motion to compel, it is not clear what actions, if any,
were taken to resolve this dispute amicably, and the court has not imposed less severe sanctions.
For all of these reasons, the court finds that dismissal is unwarranted at this time and the
defendant’s motion is DENIED. Dean is ORDERED to produce the supplemental records
related to his medical care within fourteen days of this Order.
ENTERED this 12th day of September, 2013
/s/ Andrew P. Rodovich
United States Magistrate Judge
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