The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff MCI Worldcom Network Services, Inc. (MCI) brought this
action against Atlas Excavating, Inc. (Atlas) alleging trespass,
negligence and statutory strict liability. Defendant Atlas now seeks
leave to file an amended answer containing the affirmative defense of
comparative fault, along with a counterclaim against MCI and a third
party complaint against AT&T Corporation (AT&T). Atlas also filed
a motion to compel the deposition of Brian Tooley as MCI's Federal Rule
of Civil Procedure 30(b)(6) witness in Chicago. MCI filed a motion
seeking sanctions against Atlas for a series of discovery violations. For
the following reasons, plaintiff's motions and defendant's motion are
Atlas' Motion for Leave to File Counterclaim and Third party Claim and to
This case arises from an incident in Bensonville, Illinois, in December
2001, in which Atlas severed an underground cable belonging to MCI while
installing fiber-optic cable lines for XO Communications. Atlas also
damaged utility lines belonging to AT&T Broadband (now known as
Comcast). In its complaint, MCI alleges that it properly marked the
location of the cable line pursuant to Illinois law and regulations.
During discovery, Atlas learned that
AT&T may have marked the line and seeks to amend its complaint.
Under Rule 15(a) we should allow pleading amendments "[i]n the absence
of any apparent or declared reason such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, [or] futility of
the amendment." Foman v. Davis, 371 U.S. 178, 182 (1962); King v. Cooke,
26 F.3d 720, 723 (7th Cir. 1994). Delay alone is generally not sufficient
to justify denial of leave to amend.
In its response, MCI argues that we should deny the motion because
Atlas improperly delayed the amendment resulting in prejudice and because
It improperly states a claim against AT&T rather than AT&T Broadband or
Comcast We disagree. First, Atlas claims to have only learned of its
potential claim through discovery, In late 2003. Moreover, delay alone Is
not enough to deny the motion and there Is no evidence that MCI will be
prejudiced In any meaningful way. It should have been clear from the
commencement of this litigation that the marking of the lines is a
crucial issue that will be addressed through discovery. We believe that
it will be most efficient to have this issue fully litigated In this
action. Finally, it seems that AT&T was the legal owner of AT&T
Broadband in December 2001, and Is therefore the proper third party
defendant in this action.
On October 24, 2003, Atlas attempted to set the deposition of Brian
Tooley, MCI's Rule 30(b)(6) witness, in Chicago, where he was expected to
testify as to a number of matters on behalf of the corporation. Defendant
denied, instead stating that Tooley would only be made available in
Texas, his home state and the corporate home of MCL
The general rule is that plaintiff, even if a non-resident, must appear
at depositions In the forum of its choosing. Orrison v. Baicor Co.,
132 F.R.D. 202, 203 (N.D. Ill. 1990). That is, because MCI brought suit
in the Northern District of Illinois, it must make party witnesses
available in Chicago, even if these witnesses live elsewhere. The cases
relied on by MCI do not contradict this rule; instead, they deal either
with non-party witnesses or with corporate defendants. See Yaskawa Elec.
Corp. v. Kollmorgen Corp., 201 F.R.D., 443 (NJ). Ill. 2001); Zuckert v.
Berkliff Corp., 96 F.R.D. 161 (N.D. Ill. 1982).
MCI's Motion for Sanctions
On November 11, 2002, MCI served its interrogatories and document
production requests upon Atlas. After Atlas failed to respond, MCI filed
a motion to compel, which was granted on June 2, 2003. Atlas, however has
still failed to comply with that order by producing the documents or
answers. Also, Atlas was required to produce a Rule 30(b)(6) witness who
was qualified to testify as to a list of 24 issues. Terry Dillon was
named as Atlas1 witness, but at his deposition on November 19, 2003, he
was unable to testify as to past damage by Atlas to other underground
utility lines, also the subject of the earlier discovery dispute.
While defendant changed counsel after we issued the June 2, 2003
order, this does not provide it with an excuse to ignore that order.
Atlas admits In its response that it has not provided all of the required
information, yet fails to provide an adequate justification for this
failure. Rule 37(b)(2) allows us to impose reasonable sanctions (such as
costs and fees) in the case of such failure to comply with discovery
orders. See also Melendez v. Illinois Bell Telephone Co., 79 F.3d 661,
670-71 (7th Cir. 1996). Atlas is directed to follow the order of June 2,
2003, and to pay MCI's costs and fees incurred in the filing of this
Atlas likewise offers no justification for Its failure to adequately
produce its 30(b)(6) witness. It does not deny that Dillon was unqualified
to testify as to the past damage, but instead claims that Dillon was
partially prepared and it will make another witness available to discuss
the remaining issue. This is not enough to avoid sanctions for its
failure. Even though Dillon was mostly qualified and the deposition was
by no means futile, defendant's failure to fully prepare him to testify
violates Rule 30(b)(6). See Buycks-Roberson v. CitiBank, Federal Say.
Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995). In addition to making
available a qualified witness, defendants are ordered to pay attorney's
fees and the costs of the deposition of ...