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FRANZEN v. ELLIS CORPORATION

September 13, 2004.

RICHARD FRANZEN, Plaintiff,
v.
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.

BACKGROUND

  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 courthouse.

  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 dates.

  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 ...


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