United States District Court, Northern District of Illinois, E.D
July 17, 1985
GREGORY WOOTEN, ADMINISTRATOR OF THE ESTATE OF LESTER LEE WOOTEN, PLAINTIFF,
JOHNSON & JOHNSON PRODUCTS, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Rovner, District Judge.
MEMORANDUM OPINION AND ORDER
Presently before this Court is the plaintiff's motion to vacate
the dismissal of this action for want of prosecution entered by
Judge Bua on March 15, 1985 after the plaintiff's attorney
failed to appear in court on the defendants' motion to dismiss
for failure to comply with discovery which had been entered and
continued to that date from March 8, 1985. Judge Bua's order
noted that the plaintiff failed to appear "or comply with
On January 11, 1985, defendants filed a motion to compel
answers to supplemental interrogatories which defendants had
served on plaintiff on July 25, 1984. Defendants also sought to
compel the production of documents and tape recordings which
plaintiff identified at his deposition on October 24, 1984.
Plaintiff failed to comply with defendants' discovery requests
and, on February 28, 1985, defendants filed a motion to dismiss
plaintiff's complaint pursuant to Rule 37 of the Federal Rules
of Civil Procedure. On March 8, 1985, at the hearing on
defendants' motion, Judge Bua ordered plaintiff to comply with
all outstanding discovery and entered and continued defendants'
motion to March 15. As of the time of the continued hearing on
defendants' motion, plaintiff still had not complied with
discovery and counsel for plaintiff failed to appear at the
hearing. Judge Bua dismissed plaintiff's action as a sanction
for failure to comply with discovery.
In addition, this Court had also twice set discovery cut-off
dates, of January 15 and March 8, 1985 respectively, which
passed without plaintiff having complied with discovery.
Plaintiff also failed to comply with the briefing schedule set
by this Court on the defendants' motion for summary judgment
which expressly provided that the schedule set was the final
extension. Finally, despite plaintiff's assertions that he has
now fully complied with discovery, plaintiff's attorney admits
that he has not fully answered the defendants' supplemental
interrogatories because his expert had not yet prepared his
report, a lame excuse at best in light of this Court's
discovery orders. Thus, plaintiff delayed in answering the
defendants' supplemental interrogatories for over seven months
despite the passing of two discovery cut-off dates and despite
Judge Bua's order that he comply by March 15, and has yet to do
so in a satisfactory manner.
Because this Court is concerned that the rights of the
plaintiff estate should not be affected by the conduct of its
counsel, the Court will vacate the dismissal for want of
prosecution. Nonetheless, enough is enough. The only excuse
offered by plaintiff's counsel for his failure to appear in
court at 9:30 a.m. on March 15 is that the Court's minute order
did not expressly direct him to do so. That excuse is simply
frivolous in light of the fact that the minute order
specifically stated that the motion to dismiss for failure to
comply with discovery was "entered and continued to March 15,
1985." Attorneys in this District know the meaning of these
words. This Court will not condone such conduct by requiring
the defendants to bear the cost of making the plaintiff's
attorney comply with his obligations to this Court. At the same
time, the Court is fully cognizant of the fact that it is
plaintiff's attorney who is at fault here, not plaintiff.
Rule 37(a)(4) of the Federal Rules of Civil Procedure provides
If the motion [to compel] is granted, the court shall, after
opportunity for hearing, require the party or deponent whose
conduct necessitated the motion or the party or attorney
advising such conduct or both of them to pay the moving party
the reasonable expenses incurred in obtaining the order,
including attorney's fees, unless the court finds that the
opposition to the motion was substantially justified or that
other circumstances make an award of expenses unjust.
Under the circumstances of this case, the Court believes it
would be unjust not to award defendants their expenses and
attorneys' fees for undertaking to confer and correspond
numerous times with plaintiff's counsel, for preparing a motion
to compel discovery and a motion to dismiss for failure to
comply with discovery, and for responding to plaintiff's motion
to vacate the dismissal. Accordingly, pursuant to Fed.R.Civ.P.
37(a)(4), this Court has decided to require the plaintiff's
attorney, Leonard B. Miller, personally to pay the defendants
their reasonable expenses incurred in obtaining this Order,
including attorneys' fees.
Defendants' attorneys submitted with their response to the
motion to vacate the affidavit of counsel that the legal fees
incurred total $1280. Although Mr. Miller was given an
opportunity to object in his reply brief, he made no mention of
it. Thus, this Court grants the motion to vacate the dismissal
for want of prosecution but requires that Leonard B. Miller pay
the defendants the sum of $1280 as a sanction under
Fed.R.Civ.P. 37(a)(4). In addition, the plaintiff is ordered to
file his brief responding to defendants' motion for summary
judgment by August 1, 1985 and to comply with all outstanding
discovery forthwith. Failure to do so will result in dismissal
of this case with prejudice. The defendants' reply brief is to
be filed by August 15, 1985. It is so ordered.
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