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Aureen Berry v. Ford Modeling Agency

August 18, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


Before the Court are Plaintiff's objections [93] to Magistrate Judge Mason's June 1, 2011 order [91] awarding Defendant $1,837.70 in fees and costs incurred as a result of Plaintiff's refusal to cooperate in discovery. Plaintiff argues that the sanctions imposed are excessive, that she cannot afford to pay, and that they should be vacated or substantially reduced. For the reasons stated below, the Court respectfully overrules Plaintiff's objections [93] and upholds Judge Mason's order [91].


Aureen Berry ("Plaintiff") filed a complaint against Ford Modeling Agency, Inc. ("Defendant"), alleging violations of the Illinois Right to Publicity Act, 765 ILCS 1075/1, et seq. Plaintiff had worked as a model for Susanne's A-Plus Talent ("Susanne's"), an agency that subsequently was purchased by Defendant. Plaintiff claims that Defendant commercially published images from a prior photoshoot with Susanne's and Chade Fashions, Inc. ("Chade") without Plaintiff's consent, in violation of the Act. Plaintiff claims that in publishing her image, Ford engaged in 15,233,301 unauthorized uses, and thus Plaintiff seeks almost $8 billion in damages.

Plaintiff had previously filed suit in state court against Chade, the company that manufactured the product on which her image purportedly appeared. Plaintiff alleged that Chade had engaged in similar violations of the Act. See Berry v. Chade Fashions, 890 N.E.2d 1239, 1242 (Ill. App. Ct. 2008). On June 30, 2008, the Appellate Court of Illinois reversed the trial court's entry of partial summary judgment in Berry's favor, vacated the $1,000 damage award, and affirmed the trial court's ruling on directed verdicts in Chade's favor. Id. at 1243.

After Plaintiff filed her complaint against Defendant, Defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted [7], arguing that in light of the prior Chade litigation, Plaintiff's claims were barred by the affirmative defense of collateral estoppel. The Court concluded that Plaintiff had not pled herself out of court, and thus issued a written opinion [14] denying the motion to dismiss.

The case was then referred to Magistrate Judge Mason's calendar for discovery motions and discovery supervision. Because discovery has not gone smoothly, Judge Mason has been asked to make several rulings, including the order to which Plaintiff has objected. On October 8, 2010, Defendant filed its first motion to compel [19]. This motion was filed in response to Plaintiff's refusal to comply with Defendant's request that Plaintiff produce documents regarding the Chade litigation and provide information about the purported unauthorized use of her image. Plaintiff had refused to provide this information, arguing that because Defendant had moved to dismiss the suit under a theory of collateral estoppel, Defendant had essentially admitted that the prior suit had provided it with all the required information to successfully defend itself.

Before the parties had completed briefing on the October 8 motion to compel, Defendant filed a second motion [33], October 25, 2010, requesting that the Court compel Plaintiff to answer deposition questions and impose monetary sanctions. This motion was filed in response to Plaintiff's behavior during her October 20, 2010 deposition, in which she repeatedly refused to answer basic factual questions about the case, claiming they were irrelevant. Plaintiff responded on October 29, 2010 with her own motion to compel Defendant to provide supplemental responses to interrogatories and produce requested documents [37]. On December 6, 2010, Judge Mason denied Plaintiff's motion, and granted Defendant's motions in part, directing Plaintiff to provide supplemental discovery responses and sit for another deposition, but declining to impose monetary sanctions (see [57]). In his December 6, 2010 order, Judge Mason specifically instructed Plaintiff that she was not permitted to refuse to answer questions at her deposition on relevance grounds.

Unfortunately, Plaintiff did not heed Judge Mason's order, and on January 5, 2011, defense counsel contacted the chambers of Judge Mason by phone, explaining that Plaintiff was again refusing to answer basic questions during her deposition (including basic background questions and questions regarding a written contract at issue). Over the phone, Plaintiff was admonished for her behavior and reminded that she did not have a right to question the relevancy of the questions. However, Plaintiff's uncooperative behavior continued for the remainder of the January 5 deposition, as well as in parts of the January 7 continuance.

In response to Plaintiff's failure to cooperate, on January 19, 2011 Defendant filed a motion for sanctions [66] against Plaintiff, requesting both that the court impose monetary sanctions and that it dismiss the complaint. On April 25, 2011, Judge Mason denied Defendant's request for case-terminating sanctions, but granted its motion for monetary sanctions [84]. Judge Mason ordered Defendant to submit a fee petition detailing the costs that it incurred during and in preparation for the January 5 deposition. [84.] Defendant did so. [89.] Plaintiff then filed an objection to the fee petition [90], in which she argued that Defendant's requested fees were unreasonable and that she could not afford to pay sanctions.

On June 1, 2011, Judge Mason granted Defendant's petition in part [91], ordering Plaintiff to pay $1,837.70 in fees. In the Court's order, Judge Mason considered each of Plaintiff's objections to the amount of fees, including Plaintiff's "unsupported assertion that she is unable to pay." [91, at 1.] Plaintiff now appeals that order [93], claiming that she cannot afford to pay $1,837.70, and arguing that the Court should vacate Judge Mason's imposition of monetary sanctions, or, in the alternative, that the allegedly excessive sanctions should be reduced to $50.

II. Standard of Review

Because the monetary sanctions imposed by Judge Mason punishing Plaintiff for impeding the January 5, 2011 deposition are not case dispositive, Fed. R. Civ. P. 72(a) provides the appropriate standard of review. See, e.g., Royal Maccabees Life Ins. Co. v. Malachinski, 2001 WL 290308, at *10 (N.D. Ill. Mar. 20, 2001). Under this standard, a magistrate judge's ruling will be set aside only if it is "clearly erroneous or contrary to law." Hall v. Norfolk Southern Ry. Co.,469 F.3d 590, 595 (7th Cir. 2006); 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, ...

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