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Thomas Niemeyer, et al v. Sonni Williams

December 13, 2011

THOMAS NIEMEYER, ET AL., PLAINTIFFS,
v.
SONNI WILLIAMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:

E-FILED

Tuesday, 13 December, 2011 03:45:17 PM

Clerk, U.S. District Court, ILCD

OPINION

This matter comes before this Court on Defendant Citizens Equity Federal Credit Union's (CEFCU) Motion to Dismiss James Cassidy's Claims Against CEFCU Pursuant to Rule 41(b) and Rule 37(b)(2)(a) (d/e 126) (CEFCU Motion) and Defendant City of Peoria's (Peoria) Motion to Dismiss James Cassidy's Claims Against the City of Peoria (d/e 128) (Peoria Motion) in which Peoria joined the CEFCU Motion. Plaintiff James Cassidy has settled with Defendant CEFCU. See Order Following Report of Settlement Between Plaintiffs and Defendant Citizens Equity First Credit Union (d/e 138). Peoria, however, joined the CEFCU Motion, and so, the Court will rule on the joint Motions. For the reasons set forth below, the Motions are allowed in part. The Court orders Cassidy to serve responses to the outstanding discovery requests by December 14, 2011, to make himself available to be deposed at a time convenient to Peoria before December 30, 2011, and to pay Peoria's expenses and attorney fees incurred in bringing the Peoria Motion. Pursuant to this Court's Text Order of November 30, 2011, all dispositive motions must be filed by January 3, 2012.

BACKGROUND

Plaintiff Thomas Niemeyer brought this action on April 27, 2007. Complaint (d/e 1). On August 10, 2007, Cassidy and three other individuals joined the case as additional plaintiffs. Amended Complaint (d/e 23). The plaintiffs sought class certification. The parties litigated the class certification issue before setting other deadlines. Text Order entered February 10, 2009. The District Court denied class certification on September 23, 2010. Opinion and Order (d/e 97). Thereafter, this Court set deadlines for the remaining individual claims. The Court set August 12, 2011, for completion of discovery and September 16, 2011, for filing of dispositive motions. The Court set the pretrial conference for December 28, 2011, and the trial for January 23, 2012. Text Order May 11, 2011.

On June 14, 2011, CEFCU served Cassidy with interrogatories and requests to produce (collectively the Discovery Requests). CEFCU Motion, at 1. The responses were due on July 14, 2011. Cassidy did not respond. CEFCU filed a Motion to Compel on September 1, 2011. Motion to Compel Plaintiffs Carpenter and Cassidy to Answer Written Discovery (d/e 114) (Motion to Compel). On September 21, 2011, this Court ordered Cassidy to respond to the Discovery Requests by September 30, 2011, and to complete his deposition by October 30, 2011. The Court extended the dispositive motion date to November 15, 2011, and continued the pretrial conference to January 25, 2012, and the trial to February 21, 2012. Text Order entered September 21, 2011 (September 21 Order).

Cassidy did not comply with the September 21 Order. He did not respond to the Discovery Requests by September 30, 2011, and he did not appear for his deposition in October 2011. On October 24, 2011, CEFCU's counsel learned that Plaintiffs' counsel was unable to contact Cassidy at that time and Cassidy was unavailable to be deposed. CEFCU Motion, at 3. On November 3, 2011, CEFCU filed the CEFCU Motion. Peoria joined the CEFCU Motion the same day. See CEFCU Motion, and Peoria Motion. The Court subsequently extended the dispositive motion deadline to twenty-one days after entry of a ruling on the Motions. Text Order entered November 30, 2011.

Cassidy states that he was "dilatory and remiss in not keeping in touch with his counsel." Plaintiff's Response to Motion to Dismiss of James Cassidy by Citizens Equity Credit Union as it Impacts the City of Peoria's Motion to Dismiss (d/e 137) (Cassidy Response), at 3. Plaintiffs' counsel could not locate Cassidy on September 3, 2011, when CEFCU filed its Motion to Compel, or when the Court entered the September 21 Order. Id. at 2. Plaintiffs' counsel's investigator finally located Cassidy on November 17, 2011. Id.

Cassidy came to his counsel's office on December 9, 2011, and provided information necessary to respond to the Discovery Requests. Plaintiffs' counsel, however, had computer problems and lost the information. Id. Counsel represented that Cassidy would return to his office and responses to the Discovery Requests would be served on December 12, 2011. Id. Cassidy also stated that he is available for a deposition during the two weeks commencing on December 9, 2011. Id.

Cassidy served his answers to interrogatories on December 12, 2011, but did not respond to the request to produce documents. Plaintiff, James Cassidy's, Notice of Service of Answers Interrogatories of Citizens Equity First Credit Union (d/e 139), at 1. Cassidy stated that he will respond to the request to produce on December 14, 2011. Id.

ANALYSIS

This Court already ruled on the Motion to Compel on September 21, 2011. Cassidy failed to comply with the September 21 Order. Peoria seeks sanctions for that failure. Cassidy's violation of the September 21 Order is undisputed. Cassidy's only explanation is that he was dilatory and remiss in failing to stay in touch with his lawyer. That explanation is not sufficient. He filed this action. He alleged that Peoria and CEFCU violated his constitutional rights. He caused these defendants to expend time, energy, and money to defend these allegations. He has an obligation to cooperate ...


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