The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Motion to Dismiss Plaintiff's Complaint as a Discovery Violation (Doc. 23) filed by Defendant Union Pacific Railroad Company. Plaintiff David P. Gibbs has responded (Doc. 30), and Defendant has replied to Plaintiff's response (Doc. 31). For the following reasons, the Court DENIES the motion.
On May 19, 2008, Gibbs filed this action against Union Pacific Railroad Company pursuant to the Federal Employer's Liability Act (FELA), 45 U.S.C. §§ 51 et seq. In Count I of his complaint, Gibbs alleged that he was performing his duties as a signal maintainer for Union Pacific on July 24, 2007, when he sustained injuries to his lower back, hips and legs. Gibbs alleged in Count II that he suffered cumulative trauma to his neck, left arm, and left elbow from his employment at Union Pacific Railroad because Union Pacific constantly required him to engage in excessive, dangerous, and repetitive manual labor. Union Pacific filed a Motion to Dismiss as a Discovery Sanction, accompanied by a supporting memorandum, on April 16, 2009.
Gibbs began his railroad career in 1979 as a lineman for Burlington Northern Railroad. While working as a lineman in May 1986, Gibbs fell thirty feet from a pole. He subsequently lost 645 days of work because of the injuries he sustained from that fall. Additionally, working as a lineman put a substantial strain on Gibbs's knees. He underwent two knee surgeries, and filed two claims against Burlington Northern: one in the early 1980s, and then again in the early 1990s. As part of the second claim's settlement agreement, Gibbs left Burlington Northern in 1994.
Next, Gibbs went to work for Harris Corporation, where he assembled antennas. In 1996, he was hired by Toledo, Peoria, and Western Railroad, where he worked as a signal maintainer. Three years later, he went to Kansas City Southern Railroad, where he also worked as a signal maintainer. In 2000, Union Pacific Railroad hired Gibbs to work as a signalman. Gibbs injured his back in July 2007, and underwent surgery for that injury in January 2008.
The Court may sanction a party for discovery abuse under Federal Rule 26(g), Federal Rule 37, and the Court's inherent authority. Federal Rule 26(g) states that every discovery response must be signed, and a party who signs a discovery response is certifying that "to the best of the person's knowledge, information, and belief formed after a reasonable inquiry. . . it is. . . not interposed for any improper purpose, such as to. . . cause unnecessary delay, or increase the cost of litigation." A party who violates Rule 26(g) is subject to sanctions, which "may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation." Fed. R. Civ. P. 26(g)(3).
Under Federal Rule 37, a district court may sanction a party for violating discovery rules. Fed. R. Civ P. 37(c)(1)(A)-(C). However, a party who engages in discovery abuses, even egregious ones, will not be sanctioned under Rule 37 unless a specific provision of Rule 37 was violated. See Greviskes v. Universities Research Ass'n, Inc., 417 F.3d 752, 759 (7th Cir. 2005). For example, in Greviskes, the plaintiff used discovery records produced by the defendant to gain access to another individual's social security number, and then posed as that individual. Id. at 754. While the plaintiff's fraudulent conduct was highly egregious, no specific provision of Rule 37 was violated. Id. at 759. Therefore, the plaintiff could not be sanctioned pursuant to Rule 37. Id. Under similar circumstances where Rule 37 is not "technically" violated, a district court may sanction a party under its inherent authority. Id. (citing Dotson v. Bravo, 321 F.3d 663 (7th Cir. 2003)).
A district court has the inherent power to impose sanctions upon parties who have abused the judicial system. Methode Electronics, Inc. v. Adam Technologies, Inc., 371 F.3d 923, 927-28 (7th Cir. 2004). The Court may dismiss a claim where the plaintiff delayed the judicial process or otherwise exhibited "contumacious conduct." Greviskes, 417 F.3d at 759 (7th Cir. 2005) (citing Dotson v. Bravo, 321 F.3d at 666). The district court must weigh the egregiousness of the plaintiff's conduct with "all aspects of the judicial process" to determine a proportionate sanction. Id.
In the instant motion, Union Pacific alleges that Gibbs committed discovery abuses by misrepresenting two material subjects: a prior back injury, and a prior lawsuit against Burlington Northern Railroad.*fn1 Union Pacific contends that because Gibbs misrepresented these two subjects, he should be sanctioned under Rule 26, Rule 37, and the Court's inherent authority.
I. Plaintiff's Alleged Misrepresentations
Discovery began in 2008. On July 25, 2008, Gibbs certified his responses to Defendant's Interrogatories Regarding Count I. On December 2, 2008, Gibbs was deposed by Union Pacific. Immediately before the deposition began, Gibbs hand-delivered amended responses to the Count I Interrogatories to Union Pacific's attorney. In January 2009, at the request of Union Pacific, Gibbs was examined by Dr. R. Peter Mirkin. In February 2009, Union Pacific obtained Gibbs's employment records from Gibbs's former employer, ...