The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge
On June 23, 2005, this court entered an Order (#40) which
accepted the Report and Recommendation (#37) filed by Magistrate
Judge David G. Bernthal in the above cause on June 3, 2005. This
court's seven-page Order set out, in detail, Defendants'
well-documented failures to comply with their obligation to
provide written discovery. This court also discussed Defendants'
violations of orders entered by Judge Bernthal, violations which
occurred despite Judge Bernthal's numerous explicit warnings and
despite the imposition of monetary sanctions by Judge Bernthal.
This court therefore GRANTED Plaintiff's Third Motion for
Sanctions (#34). Accordingly, the pleadings of all Defendants
were stricken, all Defendants were defaulted, and Plaintiff was
allowed to proceed. In addition, Plaintiff was awarded his fees
and costs related to the bringing of the motion. Plaintiff was
therefore instructed to file an affidavit of fees and costs,
which he did on June 24, 2005 (#42), seeking payment of $632.00.
Defendants have not filed any objection to the amount of this
request. Accordingly, Defendants are hereby ordered to pay
Plaintiff $632.00 in fees and costs. On June 28, 2005, new counsel filed their appearance on behalf
on Defendants. On July 1, 2005, Defendants filed a Motion to
Vacate Default Judgment (#47), with attached affidavits, a
Memorandum in Support (#49), and a sealed document (#48)
regarding the medical condition of Michael Cornyn, one of
Defendants' attorneys. On July 6, 2005, Plaintiff filed a
Memorandum of Law in Opposition to Defendants' Motion to Vacate
Default Judgment (#50). This court has carefully reviewed the
arguments of the parties and the documents provided. Following
this careful review, this court concludes that the default
judgment against Defendants should be vacated. Accordingly,
Defendants' Motion to Vacate Default Judgment (#50) is GRANTED.
However, this court strongly agrees with Defendants that
Plaintiff must be accommodated with a sanction this court feels
is appropriate. Therefore, this court is imposing alternate
On July 27, 2005, Plaintiff filed his Fourth Motion to Compel
Compliance with Written Discovery Requests (#52). This Motion
(#52) is GRANTED.
On January 12, 2004, Plaintiff, Yong-Qian Sun, filed his
Amended Complaint (#4) in this case against Defendants Board of
Trustees of the University of Illinois, Richard Herman, David E.
Daniel, Robert Averback, John H. Weaver, Ian M. Robertson, and
Joseph E. Greene. Plaintiff alleged employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 and also
claimed violations of his rights under 42 U.S.C. § 1983.
On February 17, 2004, the Board of Trustees, through their
attorney Michael R. Cornyn, filed a Motion to Dismiss
(#5).*fn1 On March 19, 2004, Attorney William J. Brinkman
filed an Entry of Appearance (#9) on behalf of the Board of Trustees. On April 13,
2004, Cornyn and Brinkman filed an Entry of Appearance (#11) on
behalf of the individual Defendants. On June 3, 2004, a Rule 16
hearing was held before this court and Judge Bernthal. Both
Cornyn and Brinkman appeared on behalf of Defendants at the Rule
16 hearing. Following the hearing, on June 7, 2004, a Discovery
Order (#20) was entered by Judge Bernthal. The Discovery Order
provided detailed discovery deadlines. The Order stated that all
discovery was to be completed by July 15, 2005, and that the
deadline for filing case dispositive motions was August 15, 2005.
This case was scheduled for a final pretrial conference before
this court on December 22, 2005, at 10:00 a.m. and for a jury
trial on January 9, 2006, at 8:30 a.m.
As noted, there were numerous problems with Defendants
providing written discovery, which culminated in this court's
Order (#40) which defaulted all Defendants. On July 1, 2005,
Defendants filed a Motion to Vacate Default Judgment (#47).
On July 21, 2005, the parties filed a Joint Motion to Extend
Discovery Deadlines (#51). In their Joint Motion, the parties
stated that they recognized that this court had not yet ruled on
Defendant's Motion to Vacate Default. The parties stated that
"however the Court rules on the Motion to Vacate, additional
discovery will be required so that both parties will be able to
present evidence on whatever issues will ultimately be presented
to the jury."
A telephone status conference was held regarding the Joint
Motion on July 22, 2005, before this court and Judge Bernthal.
After hearing from counsel, this court granted the motion.
Accordingly, the deadline for completing discovery was extended
to September 30, 2005. The deadline for filing case dispositive
motions was extended to October 28, 2005. The case was scheduled
for a final pretrial conference on February 3, 2006, at 1:30 p.m.
and for jury trial on February 21, 2006, at 9:00 a.m. At the hearing, Plaintiff's
counsel stated that he still had not received some requested
documents from Defendants. Defendants' counsel stated objections
had been made to providing some of the requested documents. This
court reminded Defendants' counsel that no timely objections were
made in this case, so that any objections have been waived. It is
this court's recollection that Plaintiff's counsel was instructed
that, if the requested documents were not received, Plaintiff
should file a Motion to Compel.
I. MOTION TO VACATE DEFAULT
1. Defendants' innocence of misconduct
In their Memorandum, Defendants first argue that this court
should vacate the default judgment against Defendants because
Defendants were personally innocent of any misconduct in this
case. Defendants argue that the failures in this case were,
instead, the result of Cornyn's medical conditions. Defendants
argue that "Cornyn's recent conduct is out of character with his
behavior in the course of a distinguished career, much of it in
federal court." In support of this argument, Defendants presented
the affidavits of Michael Cornyn, William J. Brinkman, and Mark
Henss. Defendants also supplied a "Discovery Chronology" which
purported to show that all written discovery has now been
In his affidavit, dated July 1, 2005, Attorney Cornyn stated
that he was one of the attorneys charged with representing all
Defendants in this lawsuit. Cornyn further stated that he was the
person in charge of coordinating and finalizing the discovery
compliance of all Defendants to the Interrogatories and Requests
to Produce which were forwarded to Defendants by Plaintiff's
counsel. He stated that, in conjunction with that responsibility,
he contacted all of the Defendants with respect to discovery in this case. Cornyn stated that, "[w]ithout
exception, all Defendants were fully cooperative with me in
providing the discovery I requested and the answers to
interrogatories." Cornyn stated that he did not, at any time,
advise Defendants of the existence of the three motions to compel
filed by Plaintiff or of Judge Bernthal's orders. Cornyn stated
that "Defendants were never aware of the orders entered by the
Court and never apprehended that they were in violation or
potential violation of any such orders at any time prior to June
23, 2005." Cornyn stated that he did advise Mark Henss of the
Office of University Counsel that the first Motion to Compel was
filed, an order entered and sanctions granted. Cornyn stated that
he informed Henss "that the problem would be worked out quickly
and written discovery was nearly completed." Cornyn stated that
he did not, at any time, inform Henss of the second or third
motions to compel, or orders relating to those motions. Cornyn
I have recently been diagnosed as suffering from two
serious conditions, and the doctor who provided said
diagnosis has advised me that he believes that these
conditions lasted for at least six months. A report
from Dr. David Whitehill confirming and explaining
that diagnosis has been forwarded to Plaintiff's
counsel. A motion to file that report under seal has
been filed. I ask that said report be kept under seal
and not made available to the public.
I believe that the conditions from which I was
suffering interfered with my ability to properly
manage the defense of this case for each of the
Defendants, to their detriment.
As noted, Defendants filed, under seal, a letter from Dr. David
L. Whitehill related to Cornyn's medical condition. Dr. Whitehill stated that evaluations of
Cornyn "have resulted in two significant medical diagnoses" and
that Cornyn "has decided to take a short-term medical leave of
absence to help in addressing these issues."
In his affidavit, dated June 30, 2005, Attorney Brinkman stated
that he is counsel of record in this case but that "Cornyn had
performed virtually all of the work on this file and was so doing
exclusively during 2005, until June 24, 2005." Brinkman stated
that he was aware of the first motion to compel but was assured
by Cornyn that the order was being complied with. Brinkman stated
that, until June 24, 2005, he had "no personal knowledge" of the
second or third motion to compel, Judge Bernthal's Report and
Recommendation or this court's Order accepting it. ...