The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on, inter alia, Magistrate Judge Donald G. Wilkerson's Report and Recommendations (Doc. 103), which recommends that Defendants' Motion for Sanctions (Doc. 94) be granted. Specifically, Magistrate Judge Wilkerson finds that Plaintiff Michael Allison's continual, willful failure to cooperate in discovery and comply with the Court's orders warrants dismissal of this matter with prejudice.
After reviewing a report and recommendation, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. The Court has discretion to conduct a new hearing and may consider the record before the magistrate judge anew or receive any further evidence deemed necessary. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
It is undisputed that Allison has repeatedly failed to comply with the direct, explicit orders of Magistrate Judge Wilkerson. Namely, on October 7, 2010, Magistrate Judge Wilkerson ordered the parties "to agree on [a] date and time for inspection [of Allison's vehicles at issue in this case]. Inspection to occur within 30 days." Doc. 79. The inspection never occurred within those 30 days, largely because the parties could not agree on a date to meet. When the parties finally settled on November 18 as the date for inspection, Magistrate Judge Wilkerson rightfully memorialized said date in an order. Doc. 86 ("The Court orders that the inspection of the vehicles at issue in the case, tentatively set for 11/18/2010, shall take place. Plaintiff or Plaintiff's counsel shall allow the inspection of the vehicles, as [previously] discussed . . . .") (emphasis added). In that same order, Magistrate Judge Wilkerson made clear the importance of moving this case forward: "If Plaintiff or Plaintiff's counsel hinders the inspection of the vehicles, the Court may, in its discretion and pursuant to Fed. R. Civ. P. 37(b)(2), prohibit introduction into the case of any evidence regarding the value of the vehicles." Id. A reconsideration motion by Allison was quickly met with denial, further clarifying what was expected of him. Despite being fully aware of his obligations regarding inspection, Allison decided against allowing inspection of his vehicles on November 18. A show cause order as to sanctions and the instant R & R from Magistrate Judge Wilkerson soon followed
It is also undisputed that Allison did not cooperate with Defendants in having his vehicles inspected. Defendants worked with Allison in deciding upon November 18 as a mutually agreeable date for inspection. To further coordinate the inspection, Defendants called Allison four times and left him two messages over the days immediately preceding November 18. Despite being aware of Defendants' efforts to coordinate the necessary inspection, Allison opted to ignore their calls and messages.
To summarize, Magistrate Judge Wilkerson made clear to Allison three times that he was to ensure Defendants' experts were able to inspect the vehicles on November 18 or another date around that time. While Allison could have appealed Magistrate Judge Wilkerson's inspection rulings to this Court, see S.D. Ill. L. R. 73.1(a), he chose not to do so. Magistrate Judge Wilkerson also made clear to Allison several times that sanctions would be the consequence of any non-compliance with the inspection orders. While little more was expected of Allison than picking up the phone or returning a message, Allison persisted in a course of stubbornness.
In his 27-page objection to the R & R,*fn1 rather than specifically explaining or justifying why he did not allow Defendants to inspect his vehicles on November 18, Allison launches into a diatribe about why any inspection by Defendants' experts is inherently wrongful.*fn2 For example, Allison argues that most of the physical and consequential damages to the vehicles are internal damages and damages to the underside of each vehicle that cannot be assessed in an inspection. Allison further contends that Defendants would be committing civil and criminal trespass if they were to go onto the property where the vehicles are currently being kept and that the Court does not have the jurisdiction to encourage or condone such alleged trespass. Allison next touts his offer that would allow Defendants' experts to watch his experts disassemble and examine the vehicles.*fn3 Finally, Allison complains about Defendants' failure to comply with his discovery motions, and the Court's failure to remedy same.
Allison's many objections barely comport with one another, let alone craft an argument against inspection. More importantly, his objections, which merely reiterate basic discovery qualms that have long since been overruled, do not address why sanctions should not be imposed in this case. Allison might not want Defendants' experts to inspect his vehicles or believe that Defendants have any right to inspection, but this is not something he gets to decide. As Magistrate Judge Wilkerson stated, "A party may not attempt to manipulate the Court into acting in its favor by rebellious refusal to follow rules and orders of the Court. No party, no matter how meritorious his claims, is above the law." Doc. 103, p. 6. Allison's inability to comprehend the fact that he is not in charge of what is discoverable shall not go unpunished. Like Magistrate Judge Wilkerson, the Court finds that Allison's conduct has been marked by a clear record of the bad faith and contumacious behavior that should result in sanctions under Federal Rules of Civil Procedure 37(b) and 41(b) respectively. See Maynard v. Nygren, 332 F.3d 462, 467-68 (7th Cir. 2003).
The only matter in which the Court is in disagreement with Magistrate Judge Wilkerson is the extent of the sanction warranted. When discussing sanctions before November 18, 2007, Magistrate Judge Wilkerson mentioned prohibiting the introduction of any evidence as to the value of the vehicles at issue. The Court believes this is an appropriate sanction, especially since Allison had notice that it might be imposed. But, unlike Magistrate Judge Wilkerson, the Court does not find "[t]here can be no resolution of the case without discovery regarding the value of and extent of damges to the vehicles." Doc. 103, p. 6. Apart from damages to his vehicles, Allison largely complains about the constitutionality of the underlying City of Bridgeport, Illinois, ordinance in the operative Amended Complaint (Doc. 32). The Court sees no reason why Allison's non-compliance with the inspection orders should bar his attack on the constitutionality of said ordinance. The Court believes that a prohibition on evidence relating to the value of the vehicles, whereby the Court effectively strikes Allison's claims for compensatory damages, will be sufficient to deter Allison's non-compliance in the future.
For the foregoing reasons, the Court ADOPTS in part and REJECTS in part Magistrate Judge Wilkerson's R & R (Doc. 103). Specifically, the Court ADOPTS the R & R insofar as it recommends that Allison be sanctioned for non-compliance with specific inspection orders, whereby the Court GRANTS Defendants' Motion for Sanctions (Doc. 94). The Court REJECTS the R & R insofar as it recommends that the sanction be dismissal of this matter with prejudice and that this matter be dismissed with prejudice. Rather, the Court henceforth PROHIBITS Allison from presenting any evidence as to the value of the vehicles at issue, whereby the Court STRIKES Allison's requests for compensatory damages in Counts I-XII of the Amended Complaint (Doc. 32). And, the Court WARNS Allison that his failure to comply with any of the Court's orders in the future may result in sanctions up to and including dismissal of this matter with prejudice.
Further, the Court GRANTS in part and DENIES in part Allison's Motion to Continue Trial and Motion for In-Person Status Hearing (Doc. 101). Specifically, the Court GRANTS said motion insofar as it seeks to continue the current trial date, whereby the Court VACATES the current final pre-trial conference and trial dates in this matter. The Court SETS May 12, 2011, at 9:30 a.m. for a final pre-trial conference and May 23, 2011, at 9:00 a.m. for trial. The Court DENIES said motion insofar as it seeks an in-person status hearing because of Allison's inability to succinctly state the basis and extent of his request. See supra note 1,
Finally, the Court ORDERS the parties to file any remaining dispositive motions no later than March 11, 2011. Any remaining discovery requests or issues shall be presented to Magistrate Judge Wilkerson.