United States District Court, N.D. Illinois, Eastern Division
September 13, 2004.
RICHARD FRANZEN, Plaintiff,
ELLIS CORPORATION, Defendant.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Presently pending before the Court are Plaintiff's Motion to
Reconsider, Defendant's Second Motion for Involuntary Dismissal
and Defendant's Third Motion for Involuntary Dismissal.
On September 19 and 22, 2003, defense counsel took Plaintiff's
depositions. Each deposition lasted approximately three hours.
On October 1, 2003, Defendant filed a Motion for Sanctions
based on Plaintiff's counsel's behavior at the September 2003
depositions. This conduct included Plaintiff's counsel's making
over 200 objections in less than a six-hour period of time during
defense counsel's questioning of Plaintiff, repeatedly coaching
the witness during the deposition, and making unprofessional
remarks to defense counsel.
On November 19, 2003, the Court granted the Motion for
Sanctions, finding that Plaintiff's counsel's conduct was
sanctionable. The Court also ordered all depositions involving
Plaintiff's counsel be conducted at the courthouse and that
Plaintiff's counsel was to refrain from the sanctionable conduct
during further depositions. Plaintiff's counsel originally agreed
but later orally moved that Plaintiff's deposition be taken
elsewhere because Plaintiff had difficulty traveling. The Court granted this motion and ordered Plaintiff to be deposed
within seven days at a location near Plaintiff's residence.
Further, the Court ordered orally that the deposition could be up
to six hours. On November 25, 2003, Plaintiff's deposition
resumed. The deposition lasted approximately two hours because
Plaintiff's counsel terminated the deposition because the
Plaintiff was in too much pain to continue the deposition.
On November 26, 2003, Defendant filed a motion for involuntary
dismissal and sanctions based on Plaintiff's early termination of
the November 25, 2003 deposition. On December 2, 2003, a briefing
schedule on the motion was ordered. The Court also ordered that
Plaintiff was to appear for his deposition on December 3, 2003,
at 9:00 a.m. and that the deposition would take place in the
On December 3, 2003, Plaintiff failed to appear for his
deposition. Instead, Plaintiff filed an Emergency Motion for a
Protective Order and sought reconsideration of the Court's
December 2, 2003 ruling. In his emergency motion, Plaintiff
argued that he was unable to travel to Chicago for his deposition
and that he was unable to sit for an extended period of time for
his deposition because of his physical condition, including a
broken spine and incontinence. In support of his emergency
motion, Plaintiff provided: (1) a June 10, 2003 note from his
physician that stated that Plaintiff "couldn't travel to downtown
[due] to his back problem"; (2) an August 8, 2003 note from his
physician stating, "Limit time for deposition to 1 hour or as
needed by back pain"; (3) an August 10, 2003 note from his
physician stating that Plaintiff "has increasing pain when he
sits for more than 2 hours"; (4) an August 11, 2003 note from his
physician stating that Plaintiff "can sit for 1-2 hours at one
time max"; and (5) a December 2, 2003 letter from Plaintiff's
physician stating that Plaintiff had a broken spine and that
Plaintiff experiences severe disabling pain if he sits for longer than two hours and to "[p]lease make modifications as appropriate
to meet the needs of his disability . . . do not hesitate to page
me . . . should you have questions." There were no
representations regarding Plaintiff's inability to travel. The
Court attempted to contact the doctor at the phone number
provided by the Plaintiff, without success. The doctor did not
return the Court's call at the Court's phone number that was left
on the doctor's answering machine.
Plaintiff's Emergency Motion for a Protective Order and to
Reconsider was denied. The Court found that the motion on its
face failed to state grounds for relief from the Court's previous
Order. The only medical note that included a statement that
Plaintiff could not travel from June 2003 and merely stated, in a
conclusory manner, that Plaintiff could not travel downtown. The
Court had requested a current, competent medical opinion that
Plaintiff was unable to travel to downtown Chicago. The emergency
motion was denied, and Plaintiff was ordered to appear for his
deposition at 1:00 p.m. that same day. Plaintiff failed to appear
at 1:00 p.m.
On December 4, 2003, a status hearing was held; and Plaintiff
filed an Amended Emergency Motion for a Protective Order and
Motion to Reconsider the Court's December 2 and December 3, 2003
Orders. The Court again found that the motion did not state
grounds for Plaintiff's failure to appear because it contained
the same stale and ambiguous doctors' notes from the previous
motion. The doctor whom the Court telephoned the previous day had
not returned the call, as requested. When questioned how
Plaintiff planned on attending the upcoming trial, Plaintiff's
counsel stated that Plaintiff intended to use a limousine. The
Court noted that Plaintiff could use the same mode of
transportation to attend his deposition. Plaintiff's counsel also
submitted Plaintiff's affidavit in which Plaintiff averred that
he could not travel downtown. The Court reiterated that
Plaintiff's counsel was to provide a current competent medical
statement as to why Plaintiff could not appear at the courthouse, not Plaintiff's
personal belief as to his inability to travel. Plaintiff's
amended motion was denied, and Plaintiff was ordered to appear at
the courthouse at 11:00 a.m. for his deposition. Plaintiff failed
to appear. Plaintiff filed his Third Verified Emergency Motion
for a Protective Order and Motion to Reconsider the Court's
December 2nd, 3rd, and 4th Orders.
On February 11, 2003, the Court denied Defendant's Motion for
Involuntary Dismissal and Sanctions in light of conflicting
orders regarding the length of time of Plaintiff's November 25,
2003 deposition. Plaintiff's Third Verified Emergency Motion for
a Protective Order and Motion to Reconsider the Court's December
2nd, 3rd, and 4th Orders were also denied because the Plaintiff
failed to present current, competent medical evidence that he was
unable to travel downtown. Plaintiff was ordered to be produced
for his deposition at the courthouse within fourteen days.
On February 12, 2004, Defendant attempted to set Plaintiff's
deposition for February 24, 2004. On February 18, 2004, Defendant
received a letter from Plaintiff's counsel stating that he was
unavailable on February 24, 2004, because of a prior deposition
commitment. Plaintiff's counsel did not provide any alternative
On February 19, 2004, defense counsel left a voice mail message
for Plaintiff's counsel asking about taking Plaintiff's
deposition on other dates. Defense counsel also attempted to hand
deliver a letter with the same inquiry. Plaintiff's counsel
refused to accept the hand-delivered letter. On February 20,
2004, Defendant's counsel received a letter from Plaintiff's
counsel, informing her that Plaintiff planned on filing a writ of
mandamus in the Seventh Circuit Court of Appeals the following
week, seeking reversal of this Court's February 11, 2004 order. On February 23, 2004, defense counsel left another voice mail
message expressing Defendant's assumption that Plaintiff did not
plan to comply with the Court's February 11 order and asking
Plaintiff's counsel to contact defense counsel if that was not
the case. That same day, Plaintiff filed his writ of mandamus in
the Seventh Circuit Court of Appeals.
On February 25, 2004, Defendant filed the instant motion for
involuntary dismissal. On March 2, 2004, Plaintiff filed an
Emergency Motion to Abstain or Stay in light of the pending writ
of mandamus. On March 17, 2004, Plaintiff filed his Verified
Motion to Extend Time to Comply with the Court's February 11,
On March 19, 2004, the Seventh Circuit Court of Appeals denied
Plaintiff's writ of mandamus. On March 24, 2004, the Court denied
Plaintiff's Verified Motion to Extend Time to Comply with the
Court's February 11, 2004 Order because the motion failed to
indicate how much time was requested to comply with the Court's
order. The Court gave Plaintiff leave to refile the motion as
long as it included a requested time period to comply with the
order. On March 30, 2004, Plaintiff filed his Amended Motion for
Alternative Deposition Methods or to Extend Time to Comply with
the February 11, 2004 order. On April 16, 2004, the Court granted
Plaintiff's Amended Motion, ordering Plaintiff's deposition to be
concluded on or before April 23, 2004.
Plaintiff's fourth deposition took place on April 22, 2004, in
a witness room near the courtroom. The transcript of the
depositions demonstrates that within minutes of the start of the
deposition Plaintiff's counsel began the first of over 380
objections to Defendant's counsel's questions. In addition,
Plaintiff's counsel began coaching Plaintiff through objections
and statements he made prior to the Plaintiff's answering the
question. Approximately one hour into the deposition, the parties requested to speak to the Court because
the Plaintiff did not think he could continue with the
While speaking with the Court, the parties determined that the
Plaintiff could lie on a "sofa" to continue with the deposition.
In addition, Defendant's counsel stated that she believed that
Plaintiff's counsel was making inappropriate objections. The
Court reminded counsel that discovery depositions were broader
and intended to elicit more material than would be otherwise
admissible pursuant to the Federal Rules of Evidence.
The Court was requested a second time later in the deposition.
Plaintiff stated that he was attempting to answer defense
counsel's questions, but defense counsel was getting frustrated
that he could not answer the questions. Defense counsel indicated
that the problem was that she would ask a question, Plaintiff's
counsel would state multiple objections, Plaintiff would forget
the question, the question would be re-read, and Plaintiff's
counsel would repeat his objections. The Court instructed
Plaintiff's counsel that he need not repeat his objections.
Plaintiff's counsel continued making numerous and repeated
objections throughout the deposition. When defense counsel sought
the Court's assistance a third time, the Court was conducting a
hearing in another matter.
On May 14, 2004, Defendant filed its Third Motion for
Involuntary Dismissal based on Plaintiff's counsel's alleged
violation of the Court's November 19, 2003 Order, directing
Plaintiff's counsel to refrain from the previously sanctionable
conduct at future depositions. On June 7, 2003, Defendant filed
its Motion for a Rule to Show Cause based on Plaintiff's failure
to pay the $8,569.50 in fees and costs that the Court awarded
Defendant in its February 11, 2004 Order. On July 19, 2004, Plaintiff filed his Motion to Reconsider,
requesting reconsideration of the Court's November 19, 2003 and
February 11, 2004 Orders.
Relevant to the Court's analysis of Defendant's motions to
dismiss is Plaintiff's Motion to Reconsider. Accordingly, this
motion is addressed first.
Plaintiff seeks reconsideration of the Court's November 19,
2003 Order, that granted Defendant's Motion for Sanctions, and
February 11, 2004 Order, that denied Plaintiff's Motion to
Reconsider the Court's December 2nd, 3rd, and 4th Orders.
First, Plaintiff's Motion to Reconsider is untimely. Plaintiff
seeks reconsideration of Court Orders of several months ago. A
motion to reconsider filed several months after the Court's
orders and after multiple other issues have been presented by the
parties and addressed by the Court is untimely.
Second, Plaintiff's Motion to Reconsider lacks merit.
Motions for reconsideration serve a limited function of
correcting manifest errors of law or fact or presenting newly
discovered evidence or an intervening change in the law.
Cosgrove v. Bartolotta, 150 F.3d 729, 732 (7th Cir. 1998).
Reconsideration is appropriate when "the Court has patently
misunderstood a party or has made a decision outside the
adversarial issues presented to the Court by the parties or has
made an error not of reasoning but of apprehension." Spearman
Indus., Inc. v. St. Paul Fire & Marine Ins. Co.,
139 F. Supp. 2d 943, 945 (N.D. Ill. 2001), quoting Bank
of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990). A motion for reconsideration cannot be used
to introduce new legal theories for the first time, to raise legal
arguments that could have been heard during the pendency of the
previous motion, or to present evidence that could have been adduced during the pendency of the
original motion. Publishers Res., Inc. v. Walker-Davis Publ'ns,
Inc., 762 F.2d 557, 561 (7th Cir. 1985).
In his Motion to Reconsider, Plaintiff repeats essentially the
same arguments already addressed by the Court in its previous
Orders. Accordingly, the Motion to Reconsider is denied.
Defendant's motions for involuntary dismissal seek to have
Plaintiff's case dismissed pursuant to Federal Rules of Civil
Procedure 41(b) or 37(b)(2) for Plaintiff's failure to comply
with the Court's December 2003 Orders and the February 11, 2004
Order. Both motions are based on Plaintiff's failure to comply
with the Court's Orders in relation to Plaintiff's deposition. As
such, the Third Motion for Involuntary Dismissal is interpreted
as an amended motion to the Second Motion for Involuntary
Dismissal; and the Second Motion for Involuntary Dismissal is
denied as moot.
Federal Rule of Civil Procedure 41(b) provides, in pertinent
part: "For failure of the plaintiff . . . to comply with these
rules or any order of court, a defendant may move for dismissal
of an action or of any claim against the defendant." Dismissal
pursuant to Rule 41(b) is appropriate if there is a clear record
of delay or contumacious conduct or when other less drastic
sanctions have been proven unavailing. See Maynard v. Nygren,
332 F.3d 462, 467 (7th Cir. 2003) (Maynard). Dismissal is a
harsh sanction that should be imposed infrequently; and the court
can, within its discretion, impose a less severe sanction. See
Roland v. Salem Contract Carriers, Inc., 811 F.2d 1175, 1178-79
(7th Cir. 1987).
Federal Rule of Civil Procedure 37(b)(2) provides, in pertinent
If a party . . . fails to obey an order to provide or
permit discovery . . . the court in which the action
is pending may make such orders in regard to the
failure as are just, and among others the following: * * *
(C) An order striking out pleadings or parts thereof,
or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or any
* * *
In lieu of any of the foregoing orders or in addition
thereto, the court shall require the party failing to
obey the order or the attorney advising that party or
both to pay the reasonable expenses, including
attorney's fees, caused by the failure, unless the
court finds that the failure was substantially
justified or that other circumstances make an award
of expenses unjust.
A Rule 37(b)(2) dismissal requires a showing by clear and
convincing evidence of willfulness, bad faith or fault on the
part of the noncomplying party. See Maynard,
332 F.3d at 467-68. Rule 37 does not authorize dismissal if the noncomplying
party establishes that his failure to comply was due to inability
to comply, and not bad faith, or any fault of the noncomplying
party. See Societe Internationale Pour Participations
Industrielles Et Commerciales v. Rogers, 357 U.S. 197
Defendant argues that dismissal is proper because the Plaintiff
has failed to comply with this Court's Orders requiring his
deposition. Plaintiff first argues that dismissal pursuant to
Rule 41(b) is not appropriate for the alleged failure to comply
with the Court Orders. However, dismissal pursuant to Rule 41(b)
and/or Rule 37(b) may be appropriate if the party has failed to
comply with multiple orders and has shown a pattern of delay,
noncooperation and disobedience. See Roland v. Salem Contract
Carriers, Inc., 911 F.2d 1175, 1179 n. 4 (7th Cir. 1987).
Plaintiff also argues that dismissal is improper because he was
unable to comply with the Court's Orders because of his
disability and inability to travel. Plaintiff provides a letter
from his physician, dated March 12, 2004, in which his physician
states that Plaintiff is unable to sit for longer than two hours because of significant pain due to injuries
Plaintiff sustained in an April 2003 motor vehicle accident.
However, as with previous medical notes, the note only states
that Plaintiff cannot sit for more than two hours. Plaintiff
again fails to present competent medical evidence that he was
unable to travel downtown and unable to comply with the Court's
Plaintiff has repeatedly failed to comply with the Court's
Orders regarding his deposition. Moreover, Plaintiff has filed
several motions asking the Court to reconsider those orders.
These motions were denied because Plaintiff failed to present
competent medical evidence to support his assertion that he was
physically unable to comply with these orders. Plaintiff has not
established that he was unable to comply with the Court's Orders
and that such noncompliance was not willful. Furthermore,
Plaintiff's motion to extend the time to comply with the Court's
February 11 Order was not filed until after the time to comply
with the order had expired.
Defendant also argues that Plaintiff also failed to comply with
the Court's Orders regarding Plaintiff's deposition by engaging
in the same conduct during the deposition that Plaintiff's
counsel was ordered to refrain from in future depositions. This
repeated conduct prohibited Defendant from obtaining information
crucial to its defense.
In response to the most recent motion to dismiss, Plaintiff
first argues that the Defendant waived any objections by failing
to have the Court rule on each of Plaintiff's objections while
the deposition took place in the court. Plaintiff's waiver
argument lacks merit as Defendant did engage the Court concerning
Plaintiff's counsel's conduct during the April 22, 2004
Plaintiff also argues that he did not coach his client and that
his objections were proper. However, a review of the deposition
transcript clearly demonstrates that Plaintiff's counsel's
excessive objections delayed and frustrated the Plaintiff's
deposition. The review of the transcripts also clearly shows that many of the numerous and repeated
objections were improper and that some of the objections were
made in an attempt to coach the witness.
In addition to disregarding the Court's Orders as to
Plaintiff's depositions, Defendant also learned at the April 22,
2004 deposition that Plaintiff failed to produce numerous
documents relating to his medical bills. While discovery was
open, Plaintiff disclosed thirty-nine pages of responsive
documents. However, during his deposition, Plaintiff testified
that he had "a box that can fill this [witness] room" of doctors'
Based on the above repeated disregard for the Court's Orders
and the resulting inability for Defendant to obtain necessary
information to its defense, sanctions against the Plaintiff are
warranted. However, at this stage, dismissal with prejudice is
not warranted. Plaintiff's last appearance for deposition
occurred months after it was originally ordered, and Plaintiff's
counsel's disregard of the Court's Orders and inappropriate
conduct during the depositions has effectively deprived the
Defendant from discovering information crucial to its defense
despite Defendant's persistent and extensive efforts to do so.
Accordingly, the less severe sanction of prohibiting the
Plaintiff from testifying at trial is appropriate. See Equal
Employment Opportunity Comm'n v. Kenosha Unified School Dist. No.
1, 620 F.2d 1220, 1226 (7th Cir. 1980) (precluding testimony is
a permissible sanction for a party's failure to comply with court
orders). Accordingly, Defendant's Third [Amended] Motion for
Involuntary Dismissal is denied. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Reconsider is
denied. Defendant's Second Motion for Involuntary Dismissal is
denied as moot. Defendant's Third [Amended] Motion for
Involuntary Dismissal is denied.
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