PATEL v. MENARD, INC.

Filing 128

ENTY on Defendant's Motion to Dismiss or in the Alternative Sanctions Against Defendant - Menards' Motion to Dismiss is DENIED, but its Motion for Sanctions is GRANTED (Dkt. 108 ). Signed by Judge Tanya Walton Pratt on 9/15/2011. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SANJAY PATEL, on behalf of his minor child, )
R.P.
)
)
Plaintiff,
)
)
vs.
)
)
)
MENARD, INC.,
)
Defendant.
)

Case No. 1:09-cv-0360-TWP-DML

ENTRY ON DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE
SANCTIONS AGAINST PLAINTIFF
While Plaintiff Sanjay Patel and his family were shopping at Defendant Menard, Inc.
(“Menards”), a 160-pound column of fiberglass insulation fell and injured Plaintiff’s minor son,
R.P. (“R.P.”). This lawsuit followed. After over two years of litigation, the parties are now
locked in an eleventh hour discovery dispute about whether Menards is entitled to depose R.P.
Specifically, this matter is now before the Court on Menards’ motion to dismiss, or, in the
alternative, sanctions against Plaintiff due to Plaintiff’s refusal to produce R.P. for a noticed
deposition.
“Discovery is not supposed to be a shell game, where the hidden ball is moved round and
round . . . and so much money is squandered.” Lee v. Max International, LLC, 638 F.3d 1318,
1322 (10th Cir. 2011). This appears to be how Plaintiff’s counsel has treated the situation.
Although Plaintiff’s counsel’s conduct does not warrant dismissal, it does warrant consequences.
For this reason, the Court will reopen discovery for the limited purpose of allowing Menards to
depose R.P. at Menards’ convenience. Additionally, Menards is entitled to reasonable expenses
and attorney’s fees associated with both R.P.’s deposition and the present motion.

Background
Since the genesis of this litigation, R.P.’s deposition has seemingly been a foregone
conclusion. On August 23, 2009, Plaintiff filed a Preliminary Witness List naming R.P. as a
witness. Moreover, Menards expressed an interest in deposing R.P. as far back as November
2009. On May 24, 2010, Plaintiff filed a Final Witness List, naming R.P. as a witness.
Throughout the remainder of 2010, Menards reaffirmed its interest in deposing R.P., and
Plaintiff’s counsel never voiced any meaningful objection. In fact, on November 12, 2010,
Plaintiff’s counsel sent a memorandum to counsel for Menards outlining “areas of agreement”
between the parties. In doing so, Plaintiff’s counsel wrote that “[t]he depo of R.P. . . can be set
up on a very short notice.”
On July 8, 2011, counsel for Menards sent Plaintiff’s counsel an email, once again
reiterating his intentions to depose R.P. and assuring Plaintiff that they would “really go easy on
R.P.” On July 14, counsel for Menards requested available dates to depose R.P. in light of the
fast-approaching discovery deadline of August 1. On July 19, Plaintiff’s counsel responded, “I
will contact you this week regarding the proposed depositions you wish to take.” That same day,
counsel for Menards responded, “we’ve burned up 11 days since [the July 8 email] asking for
R.P.’s availability” and “we only have the following dates and times available: 7/28 in the
afternoon, 7/29 in the afternoon, or 8/1.” The email continued:
due to the overall limited time frame of the discovery deadline,
we need to hear back from you by tomorrow afternoon as to when
we can schedule these depositions; otherwise, we’ll have to go
ahead and send out the notices on our own. Again, R.P.’s
deposition should be approximately a one hour deposition . . .
Plaintiff’s counsel failed to respond in a timely fashion to this request. Consequently, on
July 21, 2011, counsel for Menards served a Notice of Deposition of R.P., scheduling a
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deposition for August 1, 2011 at 10:00 a.m. That same day, Plaintiff’s counsel, for apparently
the first time in this case, expressed concerns about R.P.’s competency and objected to R.P.’s
deposition. Counsel for Menards responded by sending Plaintiff’s counsel Indiana case law
supporting the proposition that an 11-year-old child, like R.P., is generally competent to testify.
Eight days later, on Friday July 29, Plaintiff’s counsel faxed a set of demands regarding
R.P.’s deposition. The communication stated, “[w]ith relationship to your desire to depose R.P.,
we are agreeable, provided you accept the following restrictions.” (emphasis added). That same
day, counsel for Menards accepted the deposition demands and estimated that R.P.’s deposition
would only take 15 to 20 minutes. The email ended, “It was a pleasure seeing you and Mr. Patel
today. I look forward to seeing you on Monday at R.P.’s deposition.”
The deposition never came to fruition. On Monday August 1 at 7:34 a.m., Plaintiff’s
counsel unilaterally canceled the deposition via email, writing, “[t]here is no way R.P. can do a
depo today. We really need to talk again as [I] do not feel that he can be a witness in this case as
it is far [too] upsetting and I join his parents with concern. The depo today is off.” Counsel for
Menards fired back, “[t]he court reporter and I will be at your office at the specified time. We
depose R.P. today or move to dismiss.” This threat notwithstanding, Plaintiff’s counsel refused
to make R.P. available when Menards’ counsel arrived for the scheduled deposition, stating on
the record that “[t]his is purely a human decision that has nothing to do with the procedural
rules.” Further, Plaintiff’s counsel acknowledged that he did not have a note from a medical
professional stating that R.P. was psychologically or emotionally unable to participate in the
deposition. Finally, on August 5, 2011, Plaintiff’s counsel notified Menards that he no longer
planned to call R.P. as a witness at trial. Additional facts are added below as needed.
Discussion
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Sanctions under Fed. R. Civ. P. 37 are appropriate “where a party acts intentionally to
hinder a lawsuit.” Lobrow v. Village of Port Barrington, 2011 WL 586240, at *1 (N.D. Ill. Feb.
7, 2011) (citing Collins v. Illinois, 554 F.3d 693 (7th Cir. 2009)). Specifically, Rule
37(d)(1)(A)(i) provides that the Court may order sanctions if “a party . . . fails, after being served
with proper notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i).
Moreover, deposition no-shows are not excused “on the ground that the discovery sought was
objectionable, unless the party failing to act has a pending motion for a protective order under
Rule 26(c).” Fed. R. Civ. P. 37(d)(2). Notably, Plaintiff does not have a pending motion for a
protective order under Rule 26(c). Moreover, “Rule 37(d) authorizes dismissal as a sanction for
a party’s failure to appear for a deposition after being served with proper notice,” if accompanied
by “willfulness, bad faith, or fault.” Collins, 554 F.3d at 696. Obviously, though, dismissal is a
“harsh penalty.” Id.
Throughout the lion’s share of this litigation, Plaintiff’s counsel had never hinted that he
would have a problem with Menards taking R.P.’s deposition. Then, after briefly raising the
specter of incompetency for the first time on July 21, 2011 – over two years after this litigation
commenced – Plaintiff’s counsel appeared to drop the issue and decided against court
intervention. On July 29, the parties agreed to a date, time, and protocol for R.P.’s deposition.
When the time for the deposition arrived, however, Plaintiff’s counsel scuttled it based on a lastsecond gut decision. Significantly, Plaintiff’s counsel has failed to produce any evidence
suggesting that he had a valid reason for cancelling the deposition.
Now, Plaintiff’s counsel – a little more than a month before trial is scheduled to begin, by
way of response brief to this motion to dismiss – belatedly asks the Court to hold a competency
hearing for R.P. But in the Court’s view, a competency hearing is unnecessary, as the available
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evidence overwhelmingly suggests that R.P. is well-equipped to endure a short deposition,
particularly where, as here, counsel has promised to “really go easy on R.P.” For instance, Dr.
Steven J. Couvillion assessed R.P. on October 5, 2009 and October 24, 2009, and administered
11 different tests on R.P. In doing so, Dr. Couvillion observed that:
[d]uring the clinical interview and numerous hours of testing, R.P. Patel
was cooperative, friendly, and engaging. His behavior presentation was
very appropriate for his age. He was well groomed, alert, and attentive.
There were no indications of important memory difficulties or serious
psychiatric difficulties. His mood during the evaluation was
appropriate.
Similarly, after a July 20, 2010 evaluation, Dr. John C. Farrar reported that “R.P. smiled
easily, his mood was upbeat, and he was obviously comfortable in adult company. R.P. did not
exhibit symptoms or make any statements that would suggest he is depressed. When asked if he
was happy, mad, sad, etc., R.P. said he was ‘Happy.’” Simply stated, there is no reason to
question R.P.’s ability to understand his duty to testify truthfully.1
Indiana law reinforces the position that a child of R.P.’s age is competent to testify.
Specifically, Indiana presumes that a witness is competent unless the opponent demonstrates
otherwise. Aldridge v. State, 779 N.E.2d 607, 609 (Ind. Ct. App. 2002); see also Patterson v.
State, 495 N.E.2d 714, 717 (Ind. Ct. App. 1986) (under now-repealed rule, any person over the
age of ten was presumed competent to testify). If in fact Plaintiff believed that 11-year-old R.P.
was not a competent witness, able to understand the nature and obligation of an oath, the burden
was on Plaintiff to file a timely motion. Plaintiff has failed to furnish a credible reason for the
Court to deploy its resources to hold a competency hearing. And, along similar lines, the Court

1

This is certainly not meant to downplay the seriousness of R.P.’s injuries stemming from
the accident. Rather, it is only meant to convey that R.P. appears to be well-equipped to handle a
short and courteous deposition.
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finds that Plaintiff’s counsel had no credible rationale for blocking R.P.’s deposition. Plaintiff
asserted only that he believed it would be too emotionally upsetting for R.P. to be deposed.
Unfortunately, the conduct of Plaintiff’s counsel warrants some form of sanctions.
In its discretion, the Court could dismiss this case. See Collins, 554 F.3d 693 (dismissal
was a reasonable sanction where pro se plaintiff walked out on deposition without a legitimate
reason and refused to wait for magistrate judge to address her objection). However, the Court
will stop short of such a drastic remedy, as justice is best promoted by hearing cases on the
merits. See Salgado v. General Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998) (“The sanction
of dismissal with prejudice must be infrequently resorted to by district courts . . . In the normal
course of events, justice is dispensed by the hearing of cases on their merits; only when the
interests of justice are best served by dismissal can this harsh sanction be consonant with the role
of the courts.”). In other words, the Court believes that the interests of justice weigh in favor of
allowing this case to proceed, but also affording Menards the opportunity to depose R.P. prior to
the October 24, 2011 trial.
Finally, the Court finds that reasonable expenses and attorney’s fees are appropriate
under the circumstances. Under Rule 37(d)(3), the Court “must require the party failing to act,
the attorney advising that party, or both to pay the reasonable expenses, including attorney’s
fees, caused by the failure, unless the failure was substantially justified or other circumstances
make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). Plaintiff’s counsel argues that he
was substantially justified in thwarting the deposition because the Court must make a threshold
competency determination. As explained earlier, however, this argument fails as Plaintiff has not
given the Court any evidence to suggest that a competency hearing is an appropriate or necessary
course of action. See Springer v. State, 437 N.E.2d 998, 1000 (Ind. 1982) ( “The party
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challenging witnesses on ground of incapacity to understand the nature of the oath, bears the
burden of establishing such ground.”) (citation omitted). And if Plaintiff’s counsel was truly
serious about contesting R.P.’s competency, he should’ve filed a motion to quash or motion for
protective order supported by evidence.
Plaintiff also contends that fees and expenses are inappropriate for two additional
reasons. First, Menards failed to comply with Local Rule 37.1 and the last page of the Case
Management Plan – allegedly requiring a party to consult the Magistrate Judge before filing a
motion to compel. Second, Plaintiff argues that Menards should’ve filed a motion to compel
before taking the more radical step of filing a motion to dismiss.
Both of these arguments fail. Neither the Local Rules nor the Case Management Plan
required Menards to consult the Magistrate Judge. See L.R. 37.1(a) (“If any such dispute cannot
be resolved . . . counsel are encouraged to contact . . . the assigned Magistrate Judge”); (Case
Management Plan, Dkt. 67 at 7) (if a discovery dispute “has arisen because a party has failed to
timely respond to discovery, the party that served the discovery may proceed with a motion to
compel without seeking conference. Any contacts with the court to request a discovery
conference must be made jointly by counsel, absent compelling circumstances.”). Moreover,
given that the incident occurred on the last day of discovery, Menards acted reasonably by filing
a motion to dismiss in lieu of a motion to compel. Simply stated, none of Plaintiff’s arguments
show substantial justification for the serious act of blocking a previously agreed to deposition of
an obviously relevant witness on the final day of discovery.
Conclusion
As discussed herein, the Court will reopen discovery for the limited purpose of allowing
Menards to depose R.P. at Menards’ convenience. During the deposition, Menards is free to ask
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R.P. about the effects of his injuries and how R.P. would describe his current physical condition,
pursuant to the terms previously agreed to by the parties. When doing so, of course, Menards
must be cognizant of the fact that R.P. is only 11-years-old. Moreover, Menards is entitled to
reasonable expenses and attorney’s fees associated with both R.P.’s deposition and the present
motion. Accordingly, Menards’ Motion to Dismiss is DENIED, but its Motion for Sanctions is
GRANTED (Dkt. 108).
SO ORDERED:

09/15/2011

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

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RAMEY & HAILEY
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TYRA LAW FIRM P.C.
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RAMEY & HAILEY
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THE TYRA LAW FIRM, P.C.
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