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Almy v. Kickert School Bus Line

April 15, 2011

ALMY
v.
KICKERT SCHOOL BUS LINE, INC.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Robert M. Dow, Jr than Assigned Judge

CASE TITLE DOCKET ENTRY TEXT

Pending before the Court are Plaintiff Robert T. Almy's ("Plaintiff") objections [135] to Magistrate Judge Denlow's order [130]. For the reasons set forth below, the Court overrules Plaintiff's objections [135]. Pursuant to the tolling order issued on the record at the April 13, 2011, status hearing and memorialized in this order, Plaintiff must appear for his deposition on or before Wednesday, May 4 to avoid the sanctions set forth in Judge Denlow's March 14 order. Plaintiff's motion for leave to file a reply in support of his objections and request for sanctions [140] is granted in part (as to the reply) and denied in part (as to the request for sanctions).

O[ For further details see text below.] Docketing to mail notices.Notices mailed by Judicial staff.

STATEMENT

I. Background

On March 14, 2011, Magistrate Judge Denlow entered a minute order [130] resolving two motions that were pending before him. He issued a split decision on Defendant's motion to compel discovery and for sanctions [122], granting the motion to compel Plaintiff to sit for his deposition and denying the motion for sanctions. In particular, Judge Denlow stated that "[a]s a party to this litigation, Mr. Almy must notify Mr. Sangerman of available dates for his deposition to be taken and must appear for deposition in Mr. Sangerman's office on or before 4/15/2011. In the event that Mr. Almy does not appear for his deposition, he will be barred from testifying at trial and will be barred from submitting any affidavits in opposition to any motion for summary judgment that may be filed." Judge Denlow also denied Plaintiff's motion to stay proceedings [124].

On March 28, Plaintiff timely filed his objections [135] to the March 14 order. On April 7, Plaintiff filed before Judge Denlow a motion [138] for stay pending his "appeal" -- actually, his objections. On April 8, Defendant filed a response to the objections [137]. On April 11, Plaintiff filed a request for leave to file a reply to Defendant's response to Plaintiff's objections and a request for sanctions [140] and a statement and request in regard to the April 13 status hearing [141]. In response to Plaintiff's request, the court reset the time for the hearing to 10:00 to allow Plaintiff to participate by telephone.*fn1

II. Analysis

As an initial matter, in regard to the standard of review, the Court concludes that although the sanctions that Plaintiff faces in the event of non-compliance with Judge Denlow's order are substantial, they are not case-dispositive. Even if Plaintiff were barred from testifying at trial and/or from submitting an affidavit at the summary judgment stage, victory would not be assured for Defendants. Accordingly, the proper standard of review is provided in Fed. R. Civ. P. 72(a), pursuant to which a magistrate judge's rulings will be set aside only if they are "clearly erroneous or contrary to law." Hall v. Norfolk Southern Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006); Bobkoski v. Board of Educ. of Cary Consol. School Dist., 141 F.R.D. 88, 90 (N.D. Ill. 1992); see also Weeks v. Samsung Heavy Industries Co., Ltd..,126 F.3d 926, 943 (7th Cir. 1997) (holding that under the clear error standard of review, "the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made"). The Court hastens to add, however, that it has carefully reviewed all of the briefs, both on the objections and on the underlying motions to compel and to stay that Judge Denlow addressed in the rulings to which Plaintiff objects, and on the basis of the Court's review of the entire record, the disposition of Plaintiff's objections would be the same under a de novo standard.

As the Court confirmed on the record at the April 13 status hearing, the parties agree that Judge Denlow's March 14 order encompasses three essential rulings. It (1) requires Plaintiff to sit for his deposition by April 15 and imposes a sanction on Plaintiff if he refuses to do so, (2) denies Defendant's request for sanctions, and (3) denies Plaintiff's request for a stay of all proceedings. Plaintiff objects to items (1) and (3); no issues are raised for this Court's consideration as to item (2).

In considering the objections, the court first addresses Judge Denlow's grant of Defendant's motion to compel and imposition of sanctions in the event of non-compliance by Plaintiff. The Court then turns to Plaintiff's objections to Judge Denlow's denial of Plaintiff's motion to stay proceedings.

A. Objections to the Granting of Defendant's Motion to Compel and Threatened Sanctions

To begin with, contrary to Plaintiff's suggestion, the fact that Judge Denlow's March 14 order "makes no mention of Almy's response" in no way indicates that the order is erroneous or inconsistent with due process. Judges frequently do not mention either party's briefs in their rulings, whether written or oral, and the fact that Plaintiff was given an opportunity to file a brief in response to the motion prior to the Court's ruling [see 129, filed on March 11] provided an "opportunity to be heard." This Court has every expectation that Judge Denlow read the briefs prior to ruling. But even if he did not, the ruling was neither clearly erroneous nor contrary to law. Indeed, it was eminently reasonable in the circumstances, and thus would be sustained under any standard of review.

On the merits of the order to sit for a deposition, the fundamental point of Judge Denlow's order is that when a party places matters in issue by filing a lawsuit, he must expect that the other side will use the basic tools of discovery -- including document requests, interrogatories, and depositions -- to test the basis for his claims. Parties to litigation routinely sit for depositions once the case reaches the discovery stage. Given the age (three years) and posture of this case (apparently settled as to all but two Plaintiffs), Judge Denlow was fully within his discretion to set a time limit of one month for the deposition to be completed. Plaintiff's suggestion that being compelled to sit for a deposition (apparently settled as to all but two plaintiffs), Judge Denlow was fully within his discretion to set a time limit of one month for the deposition to be completed. Plaintiff's suggestion that being compelled to sit for a deposition -- either prior to the resolution of other issues or at all -- is some form of punishment misconceives the nature of the litigation process. Providing testimony is not punishment; it is simply the ordinary ...


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