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Green v. Illinois Power Co.

July 24, 2009


The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge


On July 9, 2009, Defendant, Illinois Power Company, filed a Motion for Entry of Judgment and to Bar Plaintiff From Future Filings Until the Judgment is Satisfied (#60). That same day the court entered nunc pro tunc, backdated to February 5, 2009, an Amended Judgment (#61) assessing attorneys fees and costs in the amount of $3,108.10 against Plaintiff. There still remained pending, however, Defendant's request to bar Plaintiff from future filings until the judgment is satisfied. On July 22, 2009, Plaintiff responded with a Motion for Leave to File a Motion to Reconsider and/or Reopen Case #2:07-cv-2108-MPM, Clarification, Hearing, Strike, Jury Demand, Change of Venue (#62). For the following reasons, Defendant's Motion (#60) is GRANTED in full and Plaintiff's Motion (#62) is DENIED in full.


Plaintiff has filed a motion for reconsideration asking the court to reinstate his claim. This is the fourth motion for leave to file a motion to reconsider filed by Plaintiff since this court's August 18, 2008, Opinion (#51) dismissing his case with prejudice. It should first be noted that Plaintiff is an abusive litigant, and in Case No. 05-CV-2222, the court entered an Opinion barring Plaintiff "from filing any future lawsuits, letters, pleadings, or motions unless he first obtains leave of this court to file a given document." The August 18, 2008, Opinion (#51) dealt with Plaintiff's abuse of the discovery process, where he provided Defendant with wholly insufficient responses to written discovery. The court repeatedly warned Plaintiff that failure to comply with Defendant's discovery requests could result in the dismissal of his complaint with prejudice.

The choice of an appropriate remedy for a discovery abuse is primarily the responsibility of the district judge, who is authorized to mete out sanctions as severe as dismissing the action when a litigant fails to obey a court order compelling discovery. See Govas v. Chalmers, 965 F.2d 298, 303 (7th Cir. 1992). However, the sanctions must "be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction." Long v. Steepro, 213 F.3d 983, 986 (7th Cir. 2000), quoting Salgado v. General Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998). Entry of dismissal for a litigant's failure to cooperate in the discovery process under Rule 37(b)(2) requires a showing of willfulness, bad faith, or fault on the part of the non-complying party. See Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003). The "fault" component has been interpreted to mean that a party has acted unreasonably. See Long, 213 F.3d at 986-87.

The court found Plaintiff had failed to provide Defendant with adequate discovery as ordered by the court. Plaintiff's answers to Defendant's interrogatories were evasive, repetitive, incomplete, and consisted almost exclusively of inappropriate general objections that were cut and pasted in response to each of Defendant's queries. The court had twice warned Plaintiff that further attempts to avoid discovery would result in dismissal of his suit pursuant to Rule 37(b)(2)(v) of the Federal Rules of Civil Procedure. The court agreed with Defendant that the appropriate sanction was dismissal of the suit with prejudice.

Plaintiff has cited Federal Rules of Civil Procedure 59 and 60 in support of his Motion to Reconsider. Under Rule 59(e), a motion to alter or amend judgment, which must be the case here as there was no trial, the motion must be made no later than 10 days after the entry of judgment. Judgment was entered on August 18, 2008. Plaintiff did not file any motion for reconsideration until September 5, 2008, more than 10 days after the entry of judgment. A motion to reconsider fails on that ground.

Under Rule 60(b) of the Federal Rules of Civil Procedure,

"On motion and just terms, the court may relieve a party or its legal representative from final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it ...

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