The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
The defendant in this case failed to appear for his deposition as the Court had ordered. The plaintiffs have moved to impose a sanction; among other things, they seek entry of a default judgment. On March 19, 2007, the Court ruled that plaintiffs had established a basis for imposition of sanctions but gave defendant one final opportunity to appear for his deposition before he would be held in default. Defendant failed to appear. He has moved to reconsider the March 19, 2007 order, and plaintiffs have renewed their request to impose a sanction.
For the reasons stated below, the Court denies defendant's motion for reconsideration and imposes a sanction on defendant for his failure to appear for deposition as ordered by the Court.
The Court will review the procedural history of the case because it provides the context for the present decision. The following discussion is largely taken from the Court's March 19, 2007 decision in this case. See Abiola v. Abubakar, No. 02 C 6093, 2007 WL 898197 (N.D. Ill. Mar. 19, 2007).
The defendant, Abdulsalami Abubakar,*fn1 is a former member of the military regime that ruled Nigeria from November 1993 to May 1999. The plaintiffs are Nigerian citizens who were allegedly wrongfully detained and tortured, or whose parents were allegedly wrongfully detained and tortured, at Abubakar's behest because they criticized the military regime while it was in power. They have sued Abubakar under the Alien Tort Claims Act, 28 U.S.C. § 1350, and the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note, § 2(a).
Plaintiffs originally filed the case in the Eastern District of Michigan in February 2001. In early April 2001, plaintiffs asked the clerk of that court to enter Abubakar's default pursuant to Rule 55(a), saying that he had been served with summons and the complaint at Chicago State University in Chicago on February 23, 2001 but had not responded. The clerk entered Abubakar's default.
Later in April 2001, plaintiffs moved for entry of a default judgment against Abubakar. In response, Abubakar moved to set aside the Clerk's earlier entry of default, saying that although he had been in Chicago on February 23, 2001, he "did not receive service of process" but only heard about the case after he returned to Nigeria. See Motion to Set Aside the Clerk's Entry of Default (filed Apr. 26, 2001). Abubakar also moved for leave to file a late answer. Judge Bernard Friedman, who was presiding over the case, granted the latter motion in June 2001 and thus denied plaintiffs' motion for a default judgment. In October 2001, the judge entered an order directing the parties to complete discovery by April 15, 2002.
Plaintiffs eventually moved again for entry of a default judgment against Abubakar, saying that he had refused to make himself available for a deposition. Judge Friedman granted this motion on March 1, 2002. His order recited that plaintiffs had first noticed Abubakar's deposition for October 10, 2001, but he failed to appear. Plaintiff then obtained a court order directing Abubakar to appear for deposition on January 23, 2002, but he again failed to appear. At an ensuing hearing, Abubakar's counsel assured Judge Friedman that Abubakar would appear for deposition on February 11, 2002. Judge Friedman admonished Abubakar's counsel that the court would consider entering a default judgment if Abubakar failed to appear. Despite this, Abubakar again failed to appear. At no time during those proceedings did Abubakar contend, or even hint, that there was any legal impediment to his appearance for or testimony at a deposition.
On March 1, 2002, Judge Friedman entered a default judgment against Abubakar pursuant to Rule 37(b)(2)(C) due to his failure to appear for deposition. Abubakar then moved for reconsideration, arguing among other things that personal jurisdiction was lacking over him in Michigan (he had previously filed a motion for summary judgment as well). On April 25, 2002, Judge Friedman granted Abubakar's motion, vacated the default judgment, and dismissed the claims against Abubakar for lack of personal jurisdiction.
Plaintiffs then moved for reconsideration, attaching to their motion, among other things, a color photograph that showed Abubakar reading the complaint at Chicago State University. Judge Friedman granted plaintiffs' motion in part, deciding to transfer the case to this District pursuant to 28 U.S.C. § 1406(a) rather than dismiss it outright. See Order of July 17, 2002 at 9 ("the usual procedure should be transfer rather than dismissal").
Following the transfer of the case, this Court held a status hearing in October 2002. At that hearing, Abubakar's counsel said that he intended to move to dismiss the amended complaint. Plaintiffs objected that certain issues that Abubakar might raise had been ruled upon in Michigan or waived. The Court nonetheless set a briefing schedule, saying that it would decide what issues were appropriately raised if and when Abubakar filed his motion to dismiss.
Instead of moving to dismiss, however, Abubakar filed a motion asking the Court to rule that plaintiffs had to re-serve him with summons because the case had been transferred. The Court denied that motion on January 7, 2003. The Court's reasoned that the cases upon which Abubakar relied stood only for "the proposition that if service was not properly obtained or personal jurisdiction is lacking before transfer of a case, transfer does not cure the defect," not for the proposition "that the defendant must always be re-served following a §1406 transfer irrespective of whether proper service had been obtained when the case was pending in the original forum." Order of Jan. 7, 2003 (docket no. 32) (citations omitted). The Court found that the defendant's argument had "nothing in its favor other than empty formalism," because the purpose of service of process had been satisfied when Abubakar was originally served with summons. Id. In addition, the Court noted, there was no defect either in service or personal jurisdiction, "at least not one that the defendant had preserved" at the time of the transfer. Id. Indeed, Abubakar did not claim in his motion that he had not been served -- and any such claim would have been meritless in any event -- and he had waived any objection to personal jurisdiction by answering the complaint without raising the defect via a motion under Rule 12(b) or an affirmative defense. Id. (citing Fed. R. Civ. P. 12(h)(1) and Linc Finance Corp. v. Onwuteaka, 129 F.3d 917, 921 (7th Cir. 1997)).
Abubakar then moved for summary judgment, challenging subject matter jurisdiction and, despite the January 7, 2003 order, personal jurisdiction. The Court deferred discovery pending determination of the subject matter jurisdiction issue. See Order of Feb. 16, 2003 (docket no. 39). On June 17, 2003, the Court ruled that Abubakar had sovereign immunity for certain aspects of plaintiffs' claims but not for the claims in their entirety. See Abiola v. Abubakar, 267 F. Supp. 2d 907 (N.D. Ill. 2003). The Court again rejected Abubakar's personal jurisdiction argument for the reasons it had earlier cited. Id. at 917. The Court thereafter denied Abubakar's motion for reconsideration, in which he challenged, among other things, the Court's ruling on personal jurisdiction. The Court stated that even if Abubakar had not waived objection to personal jurisdiction, due process was satisfied, and thus personal jurisdiction existed under Illinois law, by reason of the service of summons upon him when he was voluntarily in Chicago. See Order of July 8, 2003 (docket no. 54, memorializing a longer oral ruling made on that date).
Plaintiffs then renewed their motion to compel Abubakar to appear for deposition in this country, arguing (as they had previously, and as Judge Friedman had ruled) that Abubakar's counsel had agreed to produce Abubakar in the United States. Abubakar argued that there had been no such agreement. After considering briefs on the issue, the Court ruled that both Abubakar and plaintiffs had made an enforceable agreement to appear in this country for their depositions. Plaintiffs had held up their end of the agreement by traveling here at their own expense to be deposed, but Abubakar had reneged. The Court entered an order directing that the "[d]eposition of Gen. Abubakar is to be taken by 12/31/03 at an agreed upon place in the United States," and that discovery was to be completed by March 31, 2004. See Order of Aug. 12, 2003 (docket no. 67, memorializing a longer oral ruling on that date).
Abubakar then filed an interlocutory appeal of the Court's decision rejecting in part his sovereign immunity defense and then persuaded this Court to stay proceedings in the case pending resolution of the appeal. See Order of Dec. 8, 2003 (docket no. 92). The case remained under advisement in the court of appeals until late May 2005, when that court affirmed this Court's decision on the sovereign immunity issue. See Enoharo v. Abubakar, 408 F.3d 877 (7th Cir. 2005). The court of appeals said, however, that plaintiffs' claims were subject to the TVPA, which requires a plaintiff to exhaust available judicial remedies in the place where the underlying conduct occurred, unless there is no such available remedy. Id. at 885-86. The court remanded for consideration of whether plaintiffs should be allowed to assert a claim under the TVPA and, if so, for consideration of the issue of exhaustion.
On remand, this Court permitted plaintiffs to pursue a TVPA claim. Order of June 28, 2005 (memorializing a longer oral ruling on that date). Plaintiffs asserted that they were excused from the TVPA's exhaustion requirement because they had no available judicial remedy in Nigeria. The Court held an evidentiary hearing and ruled in plaintiffs' favor on the exhaustion issue. See Abiola v. Abubakar, 435 F. Supp. 2d 830 (N.D. Ill. 2006). Abubakar thereafter advised that he had filed a notice of appeal from the Court's ruling. The Court said that it did not believe the order was properly appealable and that the case would proceed unless and until it was stayed. Abubakar's counsel said he intended to file a motion to stay, but he never did so.
On August 16, 2006, Abubakar's counsel said that he intended to ask this Court to certify the TVPA exhaustion issue for interlocutory appeal. The Court set a schedule for briefing that motion but noted that the case had not been stayed and that it would not entertain a stay unless and until it certified the case for appeal or the court of appeals accepted jurisdiction of the attempted interlocutory appeal. At the same August 16 hearing, the Court noted that it had already ruled that Abubakar was required to appear in this country for his deposition, though it asked plaintiffs not to take steps to schedule the deposition until the Court had ruled on whether to allow an interlocutory appeal.
On September 20, 2006, the Court denied Abubakar's request to certify the case for an interlocutory appeal. Abiola v. Abubakar, No. 02 C 6093, 2060 WL 2714831 (N.D. Ill. Sept. 20, 2006). The Court ordered fact discovery to be completed by June 19, 2007 and also set an expert disclosure and discovery schedule, advising counsel that these were firm deadlines.
On September 23, 2006, plaintiffs' counsel forwarded a notice of deposition to Abubakar's counsel, setting November 15, 2006 as the date for Abubakar's deposition and taking the Court up on an earlier offer to allow the deposition to be conducted in its attorney-witness room. Defendant and his counsel failed to appear on that date. Plaintiffs then filed a motion for sanctions, arguing that Abubakar should be held in contempt or in the alternative "for such other relief as this Court may deem appropriate." Pl. Mot. for Order to Show Cause at 5.
In a written response to the motion, Abubakar's counsel stated that in a conversation on October 3, 2006, plaintiffs' counsel made reference to a notice of deposition. Abubakar's counsel said that he first received the notice on October 10, 2006 and then called plaintiffs' counsel to advise that neither he nor his client could be available on the scheduled date of November 15, 2006. Abubakar argued that once plaintiffs' counsel was told that the date was "not convenient or practicable," plaintiffs' counsel had a duty to arrange for another date. Def. Opp. to Pl. Mot. to Show Cause ¶ 7. Abubakar also referred to issues regarding the proper scope of discovery but did so only in vague and general terms. Id. ¶ 8.
In reply, plaintiffs' attorney stated that he "made [a] diligent attempt to confer with the Defendant's attorney before fixing the date of the Defendant's deposition but the Defendant's attorney informed the Plaintiffs['] attorneys that he would not commit himself to any date because he knew that his client will never appear for deposition." Pl. Reply to Def. Resp. to Mot. for Sanctions ¶ 2. Plaintiffs' attorney also stated that Defendants' attorney had advised him that "even if this Honorable Court grants a default judgment as a result of his client['s] failure to attend deposition, he (the Defendant's counsel) would appeal the decision which would further prolong the case for another period of not less than six years." Id. ¶ 4. Plaintiffs' counsel said that he sent the notice setting the deposition for November 15, 2006 only after this expression by Abubakar's counsel of refusal to cooperate in scheduling the deposition. Id. ¶ 5. Plaintiffs' counsel said that contrary to the claim of defendant's counsel, he had received no communication from counsel until an e-mail dated October 18, 2006.
Plaintiffs' counsel also advised the Court that Abubakar's counsel had told plaintiff's counsel that he had advised the Nigerian government to take steps in that country to attempt to foreclose the taking of Abubakar's deposition. See id. ¶ 18. Consistent with these representations by Abubakar's counsel, plaintiffs advised, the Nigerian government had filed an action in Nigeria on or about February 14, 2007 -- after the filing of plaintiffs' motion for sanctions -- naming plaintiffs' counsel and Abubakar as defendants. In that action, the Nigerian government requested a court order to bar or limit Abubakar from giving testimony in the case and an order against plaintiffs' counsel that any effort to procure such testimony would be a crime under Nigeria's Official Secrets Act. See id., attached exhibit.
The Court's March 19, 2007 Order
In an order dated March 19, 2007, the Court discussed the history of the case as recited above and discussed the appropriateness of sanctioning Abubakar for failing to appear as ordered for deposition. Among other things, the Court noted that the Rules of Civil Procedure specifically permit imposition of a variety of sanctions for failure to appear at a deposition. Abiola, 2007 WL 898197, at *5 (citing Fed. Civ. Civ. P. 37(b)(2)(A-C) & (d)). The Court also noted that Abubakar had made no prior request for a protective order, even though the Court had invited him to do so on August 16, 2006. Id.
The Court stated that it was not "writ[ing] on a clean slate," given Abubakar's failure to appear for his deposition on multiple occasions when the case was pending in the Eastern District of Michigan, and Judge Friedman's earlier decision to enter a default judgment against Abubakar due to his non-appearance. Id. at *6. The Court stated that Abubakar's counsel had made it clear that Abubakar would not appear for a deposition, "despite his earlier commitments and the Court's orders." Id. The Court suggested that the then-pending effort in Nigeria to bar Abubakar's appearance had come too late in the day to preclude imposition of sanctions on Abubakar, noting that "on the [multiple] occasions when Abubakar's deposition was scheduled while the case was still pending in Michigan . . . neither Abubakar nor the Nigerian government interposed any claim that Abubakar's testimony would be in the least bit improper." Id. Having made a binding commitment to come to this country to give a deposition, the Court stated, Abubakar was "not now entitled simply to wave [it] away with his hand." Id.
The Court opined that it would be acting within its discretion were it to enter a default judgment, noting that several "warning shots" had been given throughout the case making it clear to Abubakar and his counsel that Abubakar faced a severe sanction. Id. The Court also noted that there had been "a clear pattern of knowing, indeed studied, noncompliance with the orders of this Court and Judge Friedman regarding the taking of Abubakar's deposition," making entry of judgment an appropriate sanction. Id. at *7. The Court stated, however, that it was hesitant to impose a default judgment as a sanction, due to a "slight ambiguity concerning the setting of the actual date for Abubakar's deposition." Id. On the other hand, the Court rejected Abubakar's contention that plaintiffs' counsel was required to get the okay of or consult with defense counsel before scheduling the deposition, see id. (citing Fed. R. Civ. P. 30(b)(1)), noting that if Abubakar had a problem with the date plaintiffs had set, it was "incumbent on [his] counsel to move for a protective order . . . ." Id.
The Court determined, however, that before entering a default judgment, it wanted to make it crystal clear what Abubakar's obligations were and what consequences he would face for noncompliance. Id. It set "a final date" for Abubakar and his counsel to appear for deposition -- April 13, 2007 at 9:00 a.m. -- and stated that if either of them failed to appear, the Court would, "on that date, enter Abubakar's default and . . . set the matter for a prove-up of plaintiffs' damages." Id. The Court also stated (for reasons that it explained) that it would not entertain any motions to move the date of the deposition, and that it likewise would not entertain any belated motions for protective order or to alter the scope of the deposition, stating that "[t]he time for such motions came and went long ago (both in 2001, when the deposition was originally scheduled to take place in Detroit, and in late November 2006, when it was scheduled to take place here)." Id. at 8 footnote omitted).
There followed a flurry of filings by Abubakar. The next day, March 20, 2007, Abubakar filed a supplemental brief that he had not sought or obtained leave to file, challenging certain statements in plaintiffs' reply memorandum. See docket no. 206. On March 22, 2007, Abubakar filed a motion to strike plaintiffs' reply memorandum, see docket no. 209, a motion for reconsideration of the Court's March 19 order, see docket no. 210, and a motion for continuance of the deposition date. See docket no. 211.
On April 6, 2007, the Court denied Abubakar's motion for continuance of the deposition date, primarily because Abubakar's counsel reported that his client would not appear for the deposition in light of the fact that a Nigerian court had barred him from doing so. See Order of Apr. 6, 2007. The Court stated, however, that it would defer entry of Abubakar's default pending briefing of the motion for reconsideration. It gave Abubakar the opportunity to file a supplemental brief in support of that motion by April 13, 2007. Abubakar then sought and obtained an extension of time, through May 1, 2007.
Abubakar filed his supplemental memorandum on May 1. The next day, after reviewing the memorandum, the Court entered an order directing Abubakar to respond to certain questions prompted by statements or suggestions in his supplemental memorandum, including whether he would appear in Nigeria for a deposition if the Court determined that to be appropriate and whether he would testify on the subjects likely to be raised, and whether he would answer written deposition questions pursuant to Federal Rule of Civil Procedure 32 if the Court was willing to consider that approach. See Order of May 2, 2007 (docket no. 221). The Court thereafter granted Abubakar's request for an extension of time to respond to those questions, reinforcing that it wanted to know not just whether Abubakar would appear in Nigeria or would accept written questions, but whether he "is willing and able to testify -- not to decline to testify -- regarding the subjects that are likely to come up given the issues involved in this case." Order of May 6, 2007 (docket no. 223) (emphasis in original).
Following further briefing, the Court is now prepared to rule on Abubakar's motion for reconsideration and to make a final ruling on plaintiffs' motion for sanctions.
Abubakar's Post-March 19, 2007 Filings
The Court will discuss in sequence the issues raised in each of the motions and memorandafiled by Abubakar ...