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August 8, 2005.

Yong-Qian Sun Plaintiff,

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 sanctions.

  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.



  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 provided.

  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 also stated:
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. ...

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